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HOME   UN'IVERSITY    LIBRARY 
OF    MODERN    KNOWLEDGE 


COMMON-SENSE   IN    LAW 

By  PAUL  VINOGRADOFF       /CyuLcC    /j^<^ 

D.C.L..    '  L.D.,    D.HIST.,    DR.JUR.,    F.B.A.  / Q  ^ ^'' 


London 
WILLIAMS   &   NORGATE 


HENRY   HOLT  &   Co.,  New   York 
Canada  :  WM.  BRIGGS,  Toronto 
India  :  R.  &  T.  WASHBOURNK,  Ltd. 


J.  PETER  MAYER 

LinPARY 


HOME 

UNIVERSITY 

LIBRARY 

OF 

MODERN  KNOWLEDGE 

Editors  : 
HERBERT  FISHER,  M.A.,  F.B.A  ,  LL.D. 

Prof.   GILBERT   MURRAY,    D.LlTT., 

LL.D.,  F.a.A, 
Prof.  J.   ARTHUR   THOMSON,  M.A., 

LL.D. 
Prof.   WllXL^M  T.   BREWSTER,  M..\. 

(Colombia  University,  U.S.A.) 


NEW    YORK 

HENRY   HOLT  AND    COMPANY 


COMMON-SENSE 

IN  LAW 

BY 

PAUL   VINOGRADOFF 

D.C.L.,  LL.D.,    D.HIST.,  DR.JUR.,  F.B.A. 

CORPUS   PROFESSOR   OF   JURISPRODEN'CE 
IN   THE   UNIVERSITY   OF   OXFORD 


LONDON 

WILLIAMS  AND   NORGATE 


Richard  Clav  &  Sons,  Limited, 

bronswick  3trbkt,  stamford  btrhet,  8.e. 

and  bukqav,  suffolk. 


3 


LIBRARY 

UNIVERSITY  OF  CALIFORiMA 

SANTA  BARBARA 


CONTENTS 


CHAP. 
I 

SOCIAL    RULES 

PAGE 

7 

II 

LEGAL    RULES  

.       28 

III 

LEGAL    RIGHTS    AND    DUTIES 

.       61 

IV 

FACTS    AND    ACTS    IN    LAW 

.       87 

V 

LEGISLATION     .... 

.     116 

VI 

CUSTOM 

.     148 

VII 

JUDICIAL   PRECEDENTS 

.     169 

VI 11 

EQUITY 

.     208 

IX 

THE    LAW    OF    NATURE 

.     234 

BIBLIOGRAPHICAL    NOTE     . 

.     249 

INDEX    OF    CASES 

.     250 

GENERAL    INDEX 

.     253 

The  following  volumes  of  kindred  interest  have  already 
been  published  in  this  Library  : 

30.     Elements  of  English  Law.     By  Prof.  W.  M.  Geldart. 

33.     The  History  of  England :  A  Study  in  Political  Evolution. 
By  Prof.  A.  F.  Pollard. 

42.     Rome.     By  W.  Warde  Fovrler,  MA. 

1.     Parliament.     By  Sir  C.  P.  Ilbert. 


COMMON-SENSE    IN    LAW 

CHAPTER  I 

SOCIAL   RULES 

1.  When  Blackstone  began  his  Oxford 
lectures  on  English  law  (1753),  he  felt  him- 
self under  the  obligation  of  justifying  a 
new  academic  venture.  "  Advantages  and 
leisure,"  he  said,  "  are  given  to  gentlemen 
not  for  the  benefit  of  themselves  only,  but 
also  of  the  public,  and  yet  they  cannot,  in 
any  scene  of  life,  discharge  properly  their 
duty  either  to  the  public  or  to  themselves, 
without  some  degree  of  knowledge  in  the 
laws." 

Things  have  moved  fast  since  Blackstone's 
day,  and  significant  changes  have  certainly 
occurred  in  the  educational  aspects  of  law. 
To  begin  with,  the  circle  of  "  gentlemen  " 
who  ought  to  give  some  thought  to  laws 
has  been  greatly  widened  :  it  comprises  now 
all  educated  persons  called  upon  to  exercise 
the  privileges  and  to  perform  the  duties  of 
7 


8  COMMON-SENSE   IN   LAW 

citizenship.  One  need  not  be  a  barrister  or 
a  solicitor,  a  member  of  parliament,  a  justice 
of  the  peace,  or  even  an  elector,  to  take  an 
interest  in  and  feel  responsibilities  towards 
laws  :  all  those  who  pay  taxes  and  own 
property  of  any  kind,  who  hire  and  supply 
labour,  who  stand  on  their  rights  and  en- 
counter the  rights  of  others,  are  directly 
concerned  with  laws,  whether  they  realize 
it  or  not.  Sometimes  a  knowledge  of  law 
may  help  directly  in  the  matter  of  claiming 
and  defending  what  belongs  to  one ;  on  other 
occasions  it  may  enlighten  a  juror  or  an 
elector  in  the  exercise  of  his  important 
functions;  in  any  case,  every  member  of  the 
community  takes  his  share  in  the  formation 
of  public  opinion,  which  is  one  of  the  most 
potent  factors  in  producing  and  modifying  law. 
Again,  we  must  try  nowadays  not  only  to 
acquire  some  knowledge  of  the  legal  rules  ob- 
taining in  England,  but  also  to  understand  the 
aims  and  means  of  law  in  general,  to  obtain 
some  insight  into  the  processes  by  which  it  is 
formed  and  administered :  for  it  is  only  in 
this  way  that  the  meaning  of  enactments  can 
be  realized  in  a  rational  and  comprehensive 
manner.  Nobody  would  think  it  possible  to 
obtain  a  reasonable  view  of  the  causes  and 


SOCIAL   RULES  9 

conditions  which  govern  economic  facts  with- 
out some  knowledge  of  economic  theory. 
And  similarly  it  would  be  preposterous  to 
reason  on  juridical  subjects  without  some 
insight  into  jurisprudence. 

In  view  of  these  obvious  considerations,  I 
should  like  to  explain  as  briefly  and  simply 
as  possible  the  main  principles  which  underlie 
legal  arrangements.  Although  the  details  of 
legal  rules  are  complicated  and  technical,  the 
operations  of  the  mind  in  the  domain  of 
law  are  based  on  common  sense,  and  may  be 
followed  without  difficulty  by  persons  of 
ordinary  intelligence  and  education.  Juris- 
prudence may  be  likened  in  this  respect  to 
political  economy,  which  also  is  developed 
from  simple  general  principles  and  yet  re- 
quires a  great  deal  of  special  knowledge  when 
it  comes  to  particulars. 

In  order  to  realize  the  aims  and  character- 
istics of  jurisprudence,  it  may  be  useful  to 
consider,  in  the  first  instance,  what  place  it 
occupies  as  a  branch  of  study.  Now  study  is 
knowledge  co-ordinated  by  reflection,  and 
as  such  it  is  peculiar  to  mankind;  for  the 
most  fundamental  difference  between  man 
and  animals  consists  in  man's  power  of  reflec- 
tion.    A  dog  feels  pain  and  pleasure,  is  moved 


10  COMMON-SENSE   IN   LAW 

to  anger  and  joy,  remembers  blows  and 
caresses,  may  exercise  cunning  in  achieving 
its  ends,  e.g.  in  opening  a  gate  or  in  pursuing 
game.  But  its  notions,  desires  and  acts 
spring  directly  from  its  emotions  or  from 
their  association  by  memory.  With  man  it 
is  different.  We  also  are  subject  to  the 
direct  impulses  of  our  emotional  nature,  but 
by  the  side  of  this  direct  driving  apparatus 
in  our  mind  we  are  conscious  of  an  entirely 
different  mental  process.  We  are  always,  as 
it  were,  holding  up  the  mirror  to  our  emotions, 
ideas  and  resolves,  and  as  a  result  of  such 
self-consciousness  we  are  living  through  the 
events  and  actions  of  our  existence  not  only 
in  their  direct  sequence,  but  also  as  through 
a  reflected  series.  In  a  direct  way  the  chords 
of  our  spirit  are  touched  from  the  outside 
by  the  various  impressions  made  by  the  ob- 
jects we  meet  on  our  way,  as  well  as  by 
the  physiological  and  spiritual  happenings 
of  our  own  organism.  The  process  of  reflec- 
tion makes  it  possible  for  us  to  rearrange  our 
stores  of  impressions  and  memories,  to  co- 
ordinate them  in  accordance  with  conscious 
aims  and  deliberately  selected  standards.  It 
is  from  this  reflective  element  that  men  draw 
their  immense  superiority  over  animals,  that 


SOCIAL  RULES  11 

speech,  religion,  art,  science,  morality,  political 
and  legal  order  arise. 

This  observation,  drawn  from  the  experience 
of    individuals,  is    no    less  apparent    in   the 
experience  of  societies,  as  recorded  by  history. 
Even  the  most  primitive  of  savages,  e.g.  the 
Veddas  of  Ceylon,  or  the  Patagonians,  manifest 
a  good  deal  of  reflection  in  their  habits  when 
compared  with  apes  or  dogs  :  only  by  such 
means  can  they  build  up  some  rude  forms 
of    speech,    some    notions    of    supernatural 
guidance,  some  account  of  the  order  of  the 
surrounding  world,  some  customs  of  mutual 
intercourse.     Yet    the    connecting    links    of 
their    reflection    hardly    reach    beyond    the 
immediate    needs    and    promptings    of    their 
rudimentary    life.     With    other    tribes    the 
accumulation  of  knowledge,  and  its  rearrange- 
ment and  co-ordination  by  reflection,  are  the 
results  of  a  long  and  arduous  struggle  in  the 
course  of  barbaric  epochs.     It  is  only  com- 
paratively late,  in  a  civilized  state  of  society, 
that    reflective    speculation    masters     every 
branch  of  knowledge  by  the  help  of  science 
and    harmonizes    the    different    sciences    by 
comprehensive  philosophy.     And  as  a  primi- 
tive savage  infinitely  excels  animals  through 
rudimentary  reflection,  civilized  man  stands 


12  COMMON-SENSE   IN  LAW 

high  above  the  savage  by  the  help  of  scientific 
and  philosophical  speculation.  Instead  of 
naively  responding  to  primary  needs,  he 
surveys  and  summarizes  the  experience  of 
innumerable  lives  of  toil  and  wisdom.  The 
barbarian  works  out  the  forms  of  speech  in 
order  to  communicate  with  his  neighbours ; 
the  modern  linguist  analyzes  the  structure 
of  language  and  the  laws  of  its  formation ; 
the  barbarian  worships  mysterious  agencies  in 
nature ;  the  modern  student  of  religion  tries  to 
account  for  the  evolution  of  myth  and  sacrifice, 
for  the  mutual  influence  of  creed  and  morals, 
for  the  growth  of  Church  organization. 

In  the  same  way,  in  contrast  to  the  simple 
rules  and  divisions  of  positive  law  which 
stretch  across  the  history  of  all  nations, 
there  arises  a  science  of  law,  a  jurisprudence 
which  aims  at  discovering  the  general  prin- 
ciples underlying  legal  enactments  and  judicial 
decisions.  It  speculates  on  the  processes  of 
thought  which  take  place  in  the  minds  of 
legislators,  judges,  pleaders  and  parties.  This 
theory  of  law  enables  men  to  frame  and  use 
their  laws  deliberately  and  scientifically, 
instead  of  producing  them  more  or  less  at 
random  under  the  stress  of  circumstances. 
The  study  of  jurisprudence  is  therefore  by 


SOCIAL   RULES  13 

no  means  a  mere  expedient  of  the  schools, 
contrived  in  order  to  introduce  beginners  to 
the  terms  and  principal  distinctions  of  their 
art,  though  of  course  jurisprudence  does  help 
in  this  respect  while  on  its  way  towards  the 
solution  of  scientific  problems.  Nor  does 
our  study  exist  chiefly  for  the  purpose  of 
classifying  and  cataloguing  scattered  notices 
as  to  rules  and  remedies  :  the  most  perfectly 
systematized  chapters  and  paragraphs  of  a 
code  would  not  render  a  general  theory  of 
law  superfluous,  for  the  prime  consideration  is 
not  so  much  to  establish  the  sequence  of  laws 
as  to  discover  their  rational  interdependence 
and  ultimate  significance.  For  the  intricate 
maze  of  a  common  laAv  which,  like  the  Anglo- 
American,  is  based  on  judicial  decisions,  the 
help  rendered  by  jurisprudential  classification 
is  especially  welcome,  nay,  necessary;  but 
even  apart  from  that,  a  theory  of  jurisprudence 
is  needed  to  strengthen  and  complete  scat- 
tered arguments  by  treating  them  as  parts  of  a 
coherent  body  of  legal  thought.  Observations 
and  rules  which  may  seem  casual  and  arbitrary 
when  memorialized  for  practice  obtain  their 
justification  or  call  forth  criticism  when  ex- 
amined in  the  light  of  a  general  theory. 
2.  It  is  usual  for  writers  on  jurisprudence 


14  COMMON-SENSE   IN   LAW 

to  begin  with  a  definition  of  the  topic  they 
propose  to  discuss,  namely,  law.  But  such 
definitions  given  at  the  very  outset  have 
this  inconvenience,  that  they  are,  as  it  were, 
imposed  on  the  readers,  who  as  yet  have 
only  vague  ideas  on  the  subject  and  therefore 
are  bound  to  accept  more  or  less  passively 
what  is  told  them  in  a  dogmatic  manner. 
Moreover,  a  definition  of  law  is  by  no  means 
easy  to  give :  many  have  been  suggested 
from  time  to  time,  and  it  is  only  after  careful 
consideration  that  one  is  justified  in  selecting 
from  the  number.  It  seems  more  advisable 
to  proceed  in  a  different  manner — ^to  clear 
the  way  for  a  definition  by  narrowing  gradu- 
ally the  scope  of  the  inquiry,  first  determining 
the  class  to  which  the  subject  belongs,  and 
then  marking  the  particulars  of  the  species 
under  discussion. 

It  is  evident  that  legal  arrangements  are 
a  variety  of  social  organization,  and  that 
therefore  jurisprudence  is  one  of  the  branches 
of  social  science.  Man  is  an  essentially 
social  being.  Social  intercourse  is  to  him  a 
dictate  of  nature,  because  he  cannot  satisfy 
his  wants  as  an  isolated  individual ;  if  left 
to  himself,  he  is,  as  Aristotle  has  put  it, 
not    self-sufficient.      By    joining    a    wife   he 


SOCIAL   RULES  15 

raises  a  family;  by  joining  his  neighbours 
in  the  union  of  the  village  he  provides 
for  the  simple  requirements  of  economic 
co-operation;  by  joining  fellow-citizens  he 
helps  to  build  up  a  state  which  protects  him 
against  enemies  and  enables  him  to  achieve 
intellectual  and  moral  progress.  We  can 
go  a  step  further  :  if  social  intercourse  is  a 
requirement  of  men's  nature,  order  of  some 
kind  is  a  necessary  condition  of  social  inter- 
course. If  a  man  profits  at  the  expense  of 
his  neighbour  by  snatching  away  his  bread,  it 
^vill  be  difficult  to  establish  a  community 
of  interests  or  any  amicable  intercourse 
between  them.  It  is  only  when  certain  rules 
of  conduct  intervene  to  settle  the  normal 
behaviour  of  men  in  the  exchange  of  com- 
modities, in  the  relations  of  the  sexes,  or 
in  the  regulation  of  services,  that  social  inter- 
course becomes  regular  and  continuous. 

There  are  thus  certain  initial  requirements 
set  to  those  who  take  part  in  the  association  ; 
they  ought  not  to  hurt  each  other,  to  take  un- 
due advantage  of  each  other,  to  act  as  if  their 
private  wills  and  pleasures  were  everything 
and  the  wills  and  interests  of  their  neighbours 
nothing.  Even  when  two  persons  join  socially 
for  the  simple  purpose  of  playing  a  game  of 


16  COMMON-SENSE   IN   LAW 

tennis  or  of  chess,  they  must  conform  to 
certain  rules  in  their  contest  if  they  wish 
to  achieve  their  immediate  end.  The  skill 
or  force  displayed  constitutes  the  substantive 
or  material  part  of  the  game;  the  rules  as  to 
moves  and  scoring  constitute  the  formal 
frame  of  this  kind  of  intercourse.  As  regards 
married  |>eople,  or  the  shareholders  of  a 
joint  stock  company,  or  the  citizens  of  a 
state,  the  relations  involved  are  much  more 
complex  and  enduring,  but  they  are  substan- 
tially of  the  same  kind. 

It  is  evident  that  laws  take  their  place 
among  the  rules  of  conduct  which  ensure 
social  order  and  intercourse.  Therefore  juris- 
prudence appears  among  social  sciences  within 
the  section  of  so-called  moral  science. 

3.  Human  thought  may  take  up  one  of  two 
possible  attitudes  in  regard  to  facts  observed 
by  it :  it  may  either  watch  their  relations  from 
the  outside  and  tryto  connect  them  with  each 
other  as  causes  and  effects,  or  else  it  may 
consider  them  in  relation  to  man's  conscious 
action,  and  estimate  the  connection  between 
ends  and  means.  The  first  point  of  view  is 
that  of  natural  science.  The  second  point  of 
view  is  peculiar  to  moral  science.  Let  us 
develop  this  distinction  somewhat  more  fully. 


SOCIAL   RULES  17 

As  soon  as  we  turn  our  attention  to  moral 
science,  we  perceive  two  fundamental  notions 
which  form  the  peculiar  character  of  this 
sphere  of  study  and  place  it  in  distinct 
opposition  to  our  conceptions  of  surrounding 
external  nature,  namely,  the  notions  of  will 
and  of  reasonable  aim.  Every  one  of  us  is 
conscious  that  his  acts  are  produced  by  his 
will,  in  the  sense  that  he  has  to  make  up 
his  mind  to  choose  one  of  many  possible 
courses  of  action ;  and  this  internal  experience 
is  opposed  to  the  other  way  of  looking  at 
events  as  governed  by  the  binding  necessity 
of  natural  laws.  If  a  connection  is  established 
between  positive  and  negative  electric  ele- 
ments, a  current  will  be  produced,  and  this 
event  will  appear  as  the  application  of  a  law 
of  cause  infallibly  working  under  certain 
given  conditions.  But  when  an  engineer  sets 
about  to  arrange  an  electric  battery,  every 
one  of  his  acts  in  the  process  is  the  result  of 
conscious  volition,  and  may  be  directed  to  a 
different  end  or  withheld  altogether  at  any 
particular  moment  :  the  will  of  the  engineer 
is,  of  course,  influenced  by  certain  causes  in 
a  definite  direction,  but  every  single  act  of 
this  will  presents  itself  as  the  expression  of 
conscious  choice. 

B 


18  COMMON-SENSE   IN   LAW 

Though  the  electric  current  is  caused  by  a 
certain  combination  of  chemical  elements, 
it  is  brought  about  as  an  end  by  a  series  of 
conscious  volitions  in  the  engineer's  mind. 
The  consciousness  of  a  moral  man  is  further 
characterized  by  its  being  reasonable,  that 
is,  by  its  submission  to  judgment  according 
to  logical  and  moral  standards.  The  applica- 
tion of  the  logical  standard  does  not  admit  of 
any  doubt  or  dispute.  Whatever  may  be 
my  likings  and  wishes,  I  have  to  conform  to 
certain  logical  rules  in  judging  of  facts.  No 
amount  of  selfish  appetite  will  change  four 
apples  into  forty  for  me,  or  alter  the  rule 
that  two  and  two  make  four.  But  reasonable 
consciousness  goes  deeper.  No  amount  of 
selfish  desire  can  conceal  from  my  reason  that 
what  is  objectionable  to  me  is  objectionable 
to  my  neighbour,  that  it  is  as  bad  to  kill  or 
rob  as  to  be  killed  or  robbed.  There  is  a 
story  that  a  savage,  on  being  asked  what 
was  the  difference  between  right  and  wrong, 
answered  :  "  It  is  right  when  I  take  my  neigh- 
bour's wife,  but  it  is  wrong  when  he  takes 
mine."  I  cannot  help  suspecting  that  this 
statement  of  fact  is  incorrect  and  unfair  to 
the  intelligence  of  the  savage.  No  doubt 
rules  which  we  hold  sacred  when  we  ourselves 


SOCIAL   RULES  19 

are  concerned  are  often  infringed  by  us  :  but 
those  who  violate  such  rules  become  conscious 
of  an  antagonism  between  their  reason,  which 
condemns  the  act,  and  their  passions,  which 
prompted  it.  A  case  of  conscience  arises, 
and  this  contradiction  between  what  happens 
and  what  ought  to  happen  is  at  the  bottom 
of  all  human  morality.  "  The  ought  expresses 
a  kind  of  necessity,  a  kind  of  connection  of 
actions  with  their  grounds  or  reasons,  such 
as  is  to  be  found  nowhere  else  in  the  whole 
natural  world.  For  of  the  natural  world 
our  understanding  can  know  nothing  except 
what  is,  what  has  been,  or  what  will  be. 
We  cannot  say  that  anything  in  it  ought  to 
be  other  than  it  actually  was,  is,  or  will  be. 
Li  fact,  so  long  as  we  are  considering  the 
course  of  nature,  the  ought  has  no  meaning 
whatever.  We  can  as  little  inquire  what  ought 
to  happen  in  nature  as  we  can  inquire  what 
properties  a  circle  ought  to  have  "  (Kant). 

4.  The  object  of  laws  is  primarily  to  supply 
rules  of  conduct,  rules  as  to  what  ought  to 
be  done  and  what  ought  to  be  abstained  from. 
Laws  are,  of  course,  not  the  only  rules  of 
conduct  which  govern  men's  actions.  People 
conform  also  to  fashions,  to  manners  and 
customs,  to  conventional  standards,  to  pre- 


20  COMMON-SENSE   IN  LAW 

cepts  of  morality.  A  man  nowadays  would 
hardly  care  to  wear  a  powdered  wig  and  a 
three-cornered  hat,  though  he  is  not  positively 
forbidden  to  do  so.,  A  lady  usually  puts  on 
mourning  after  the  death  of  her  husband  : 
she  considers  the  black  attire  and  the  veil 
to  be  prescribed  to  her  by  public  opinion  : 
and  if  she  chose  to  disregard  the  sentiments 
of  others,  unpleasant  consequences  would 
follow — ^reprobation,  hostile  comments,  and 
perhaps  the  snapping  of  social  ties  with 
friends  and  relations.  As  for  social  custom, 
it  may  not  be  absolutely  necessary  to  greet 
your  acquaintances  when  you  meet  them  in  the 
street,  or  to  call  on  them  occasionally,  but 
it  is  customary  to  do  so,  and  a  person  careless 
or  casual  in  such  matters  is  sure  to  meet 
with  some  retribution.  Conventional  stan- 
dards are  chiefly  set  up  in  connection  with 
the  habits  and  manners  of  certain  classes 
and  professions ;  they  are  narrower  than  the 
common  code  of  morality,  but  they  are 
intended  to  be  followed  by  the  members  of 
the  particular  groups  concerned.  Lawyers 
and  medical  men  recognize  special  obligations 
in  regard  to  professional  secrets  and  pro- 
fessional conduct ;  mediaeval  chivalry  imposed 
on  members   of  the  noblesse  very  stringent 


SOCIAL   RULES  21 

rules  of  courtesy ;  and  even  in  our  democratic 
age  the  code  of  gentlemanly  behaviour  and 
honour  demands  a  considerably  greater  refine- 
ment than  the  ordinary  rules  of  honest3% 
Honesty  itself,  as  well  as  truthfulness,  kind- 
ness, pity,  etc.,  are  moral  obligations  enforced 
partly  by  public  opinion  and  partly  by  con- 
science. They  are  clear  expressions  of  the 
notion  of  duty,  the  precept  of  the  "  ought," 
and  a  person  known  to  be  a  liar  or  a  ruffian 
is  certain  to  excite  feelings  of  repulsion  and 
hostility  among  his  fellow-men. 

The  rules  just  described  present  a  kind  of 
scale  in  which  each  of  the  steps  supposes 
stricter  obligations  than  that  preceding  it. 
Customary  usage  is  more  pressing  than 
fashion;  a  conventional  standard  is  more 
imperative  than  customary  usage ;  and  rules 
of  morality  are  more  absolute  than  rules 
suggested  by  a  conventional  standard.  Lastly, 
legal  duties  may  be  said  to  be  more  obligatory 
than  moral  duties.  We  notice  also  various 
combinations  of  personal  conscience,  instinc- 
tive obedience  and  outside  pressure.  In 
fashion,  the  element  of  personal  taste  is  still 
very  prominent  and  the  sanction  of  outside 
pressure  relatively  slight,  evidently  because 
the  aim  to  be  attained  by  following  its  dictates 


22  COMMON-SENSE   IN   LAW 

is  not  of  great  importance.     People  want  to 
look  like  everybody  else,  or  like  the  better 
sort,  or  a  trifle  finer  still ;  but  even  if  they  do 
not  succeed  the  failure  is  not  very  damaging  : 
in  such  cases,  people  wear,  as  it  were,  a  self- 
imposed  uniform,  and  the  characteristic  trait 
exhibited  is  the  kind  of  mimicry  which  induces 
men  to  select  the  colours  and  the  cut  of  their 
clothes  not  in  an  individual,  but  in  a  gregari- 
ous way.     Customary  usage  goes  further  :  it  is 
not  a  question  of  looks,  but  of  behaviour,  an 
expression  of   supposed  feelings,   of  respect, 
friendliness,  affection,  protection  and  the  like. 
There  is  an  aim  in  all  these  practices  :  they 
are  intended  to  make  the  wheels  of  social 
intercourse  run  easily,  to  smoothe  the  rela- 
tions of  acquaintances,  friends,  superiors  and 
inferiors    by    benevolence   and    mutual    con- 
sideration;   they    have    to    be    acquired    by 
teaching  and  habit,  but  ultimately  they  be- 
come   almost    instinctive.     In    the    case    of 
conventional   standards   the   aims   set   by   a 
community  are  very  conspicuous  :  the  chief 
object    is    to    fence    off    a    particular    group 
from  outsiders,  and  to  impress  certain  duties 
on    its    members.     Conventional    notions    of 
this  kind  may  grow  to  be  a  kind  of  secret 
doctrine,   e.g.  in  freemasonry.     Outside  pres- 


SOCIAL   RULES  23 

sure  increases  correspondingly.  A  person 
disregarding  the  rules  of  the  group  will 
eventually  be  expelled  from  it.  As  to  moral 
duties,  their  social  importance  is  manifest ; 
clearly  if  the  whole  or  the  majority  of  a 
given  society  should  be  made  up  of  liars 
and  robbers  there  would  be  small  chance 
for  credit,  security  and  well-being.  On  the 
other  hand,  however  coarse  a  man's  moral 
nature  may  be,  he  generally  recognizes  moral 
rules  in  so  far  as  they  are  likely  to  guarantee 
his  own  interests;  and  it  is  very  difficult  to 
suppose  that  one  who  is  in  the  habit  of  pro- 
tecting his  own  property  against  thieves 
would  himself  turn  to  stealing  without  an 
uneasy  sense  of  contradiction  in  his  conscience. 
5.  The  close  relationship  between  moral  and 
legal  notions  is  striking.  No  wonder  ancient 
thinkers,  Aristotle  for  example,  included  the 
discussion  of  the  elements  of  law  in  their 
treatment  of  ethics;  and  for  Socrates  and 
Plato  the  analysis  of  right  was  inseparable 
from  the  idea  of  justice.  Nor  is  it  a  mere 
chance  that  in  all  European  languages,  except 
the  English,  the  terms  for  law  and  right 
coincide — jus,  Recht,  droit,  diritto,  derecho, 
pravo — all  mean  legal  order,  general  rule  of 
law,   notion   of  right   on   one   side,   and  the 


24  COMMON -SENSE   IN   LAW 

concrete  right  asserted  by  an  individual  on 
the  other.  In  English,  law  is  distinguished 
from  right,  but  rights  are  based  on  law,  while 
on  the  other  hand  the  opposition  of  right 
to  wrong  accentuates  the  ethical  aspect  of 
the  notion.  Right  is  that  which  we  find 
correct,  adequate  to  a  certain  standard  set 
up  by  our  judgment ;  wrong  is  that  which 
is  opposed  to  it.  The  proposition  that  two 
and  two  make  five  is  wrong  according  to  an 
arithmetical  standard;  to  repay  a  benefactor 
by  ingratitude  is  wrong  according  to  a  moral 
standard ;  to  refuse  wages  to  a  labourer  may 
be  wrong  according  to  a  legal  standard,  and 
is  certainly  wrong  from  a  moral  point  of 
view,  that  is,  in  the  judgment  of  unprejudiced 
men  and  of  one's  own  conscience. 

Thus  it  is  certain  that  law  cannot  be 
divorced  from  morality  in  so  far  as  it  clearly 
contains,  as  one  of  its  elements,  the  notion 
of  right  to  which  the  moral  quality  of  justice 
corresponds.  This  principle  was  recognized 
by  the  great  Roman  jurist,  Ulpian,  in  his 
famous  definition  of  justice  :  "  To  live  honour- 
ably, not  to  harm  your  neighbour,  to  give 
every   one  his   due."  ^     All   three  rules   are, 

^  Honeste  vivere,  alterum  non  Icedere,  suum  cuiqice 
tribuere. 


SOCIAL   RULES  25 

of  course,  moral  precepts,  but  they  can  all 
be  made  to  apply  to  law  in  one  way  or  an- 
other. The  first,  for  instance,  which  seems 
pre-eminently  ethical,  inasmuch  as  it  lays 
down  rules  for  individual  conduct,  implies 
some  legal  connotation.  A  man  has  to  shape 
his  life, in  an  honourable  and  dignified  manner 
— one  might  add,  as  a  tmthful  and  law-abiding 
citizen.  The  juridical  counterparts  of  ethical 
rules  are  still  more  noticeable  in  the  last  two 
rules  of  the  definition.  The  command  not  to 
harm  one's  fellow-men  may  be  taken  to  be 
a  general  maxim  for  the  law  of  crime  and 
tort,  while  the  command  to  give  every  one 
his  due  may  be  considered  as  the  basis  of 
private  law.  And  this  last  precept  is  cer- 
tainly not  concerned  with  morals  alone  :  the 
individual  is  not  required  merely  to  confer 
a  benefit  upon  his  neighbour,  but  to  render 
to  him  that  which  belongs  to  him  as  a  matter 
of  right. 

The  real  difficulty  arises  when  we  try  to 
draw  a  definite  line  of  divison  between  moral 
and  legal  rules,  between  ethical  and  juridical 
standards.  There  are  those  who  would  co- 
ordinate the  two  notions  on  the  pattern  of 
the  relation  between  end  and  means.  They 
look  upon  ethical  rules  as  determining  social 


26  COMMON-SENSE   IN   LAW 

ideals,  the  principles  of  goodness,  virtue, 
honour,  generosity,  for  which  men  ought  to 
strive  in  their  personal  conduct,  and  the  aims 
of  development,  civilization,  progress,  per- 
fection, which  society  at  large  ought  to  set 
before  itself.  Law  and  laws  according  to 
this  theory  would  be  the  conditions  devised 
for  the  attainment  of  such  ideals.  But  such 
a  definition  becomes  so  wide  that  it  includes 
potentially  every  case  where  social  influence 
can  be  exerted,  and  one  loses  the  thread  of 
distinction  between  moral  and  legal  rules. 
Other  jurists  have  therefore  based  a  dis- 
tinction on  the  contrast  between  theory  and 
practice,  or  rather  between  the  practicable 
and  the  impracticable.  In  their  views  law 
is  morality  so  far  as  morality  can  be  enforced 
by  definite  social  action ;  in  other  words,  it 
is  the  minimum  of  morality  formulated  and 
adopted  by  a  given  society. 

This  again  is  not  satisfactory.  Many  legal 
rules  have  nothing  to  do  with  moral  precepts. 
If,  as  the  result  of  the  law  of  inheritance,  the 
eldest  son  should  have  his  father's  estate  and 
the  younger  brother  be  cut  off  with  a  scanty 
equipment ;  or  if  a  statute  makes  the  sale 
of  tobacco  a  state  monopoly  :  such  laws  are 
certainly  not  suggested  by  ethical  motives. 


SOCIAL   RULES  27 

Besides,  even  when  legal  rules  are  connected 
directly  or  indirectly  with  an  appeal  to  right, 
it  does  not  follow  that  they  are  necessarily 
framed  in  consequence  of  moral  impulses. 
The  laws  as  to  bills  of  exchange  or  pay- 
ment of  rent  are  dictated  by  commercial 
practice  or  by  established  vested  interests 
rather  than  by  moral  considerations.  In 
short,  numberless  aims  foreign  to  the  ethical 
standard  play  a  part  in  legislation  and  in 
legal  evolution :  national  interests,  class  in- 
fluences, considerations  of  political  efficiency, 
and  so  forth.  It  would  be  a  one-sided  con- 
ception indeed  to  regard  laws  as  the  minimum 
of  moral  precepts. 

One  thing  seems  clear  at  the  outset :  in  the 
case  of  legal  obligations,  we  have  to  deal  with 
precepts  of  a  stricter  and  more  compulsory 
nature  than  moral  duties.  It  is  obvious 
that  in  many  cases  the  breach  of  a  moral 
obligation  does  not  directly  involve  material 
retribution,  except  perhaps  in  the  form  of 
loss  of  good  opinion.  Many  a  rascal  takes  his 
way  through  life  without  being  made  to  answer 
for  his  sins  if  he  takes  care  not  to  infringe  the 
prescriptions  of  the  law.  It  remains  to  be 
seen  on  what  grounds  this  narrower  sphere  of 
iegal  compulsion  is  marked  off. 


CHAPTER   II 

LEGAL   RULES 

1.  When  we  speak  of  a  minimum  of  moral 
order  and  of  moral  rules  as  contents  of  law, 
we  imply  a  principle  which  has  been  widely 
used  for  the  purpose  of  defining  law,  namely, 
the  principle  of  coercion.  If  a  minimum  of 
duties  is  considered  as  necessary  for  the 
existence  of  society,  it  must  be  obtained  at 
all  costs,  and,  if  necessary,  by  the  exertion  of 
force.  Many  jurists  hold  therefore  that  law 
is  an  enforceable  rule  of  conduct,  in  opposition 
to  ethical  rules  of  conduct,  which  are  based 
on  voluntary  submission.  This  line  of  dis- 
tinction has  the  merit  of  being  simple  and 
clear  :  let  us  see  whether  it  leads  to  an  ex- 
haustive delimitation.  The  doctrine  asserts, 
when  stated  more  fully,  that  every  legal  rule 
falls  into  two  parts  :  first,  a  command,  stating 
the  legal  requirement;  second,  a  sanction 
providing  that  if  the  command  is  not  obeyed, 
force  will  be  employed  against  the  recalcitrant 
person.  Force  may  be  used  in  different  ways  : 
sometimes  in  the  form  of  execution  ;  here  the 

28 


LEGAL   RULES  29 

act  which  the  individual  refuses  to  perform 
is  done  against  his  will  by  the  executive 
officers  of  the  law  :  thus  if  a  man  refuses  to 
pay  a  debt,  the  sheriff  will  take  his  money 
or  his  furniture  to  satisfy  the  creditor.  Some- 
times instead  of  a  direct  recovery  or  execution, 
the  person  injured  is  allowed  to  claim  damages^ 
as  in  the  case  of  a  breach  of  promise  of 
marriage  or  of  injury  to  reputation  through 
libel.  Sometimes  the  sanction  operates  by 
way  of  punishment ;  a  person  who  has  stolen 
a  purse  or  broken  into  a  house  and  abstracted 
valuable  property  will  be  put  into  prison 
whether  the  objects  stolen  or  abstracted  are 
recoverable  or  not.  Lastly,  the  sanction  may 
consist  in  the  fact  that  unless  certain  rules 
are  observed,  an  intended  result  cannot  be 
achieved.  If  a  person  desires  to  make  a 
will,  but  disregards  the  law  which  requires 
that  such  an  instrument,  to  be  valid,  must  be 
attested  by  at  least  two  witnesses,  his  wishes 
as  to  the  disposal  of  his  property  after  death 
will  have  no  legal  effect.  It  may  be  said, 
therefore,  that  this  legal  rule  is  supported  by 
the  sanction  of  nullity. 

If  the  object  of  law  is  to  coerce  people  into 
submission  to  certain  rules,  the  question 
inevitably  arises  :  who  is  to  wield  the  power 


30  COMMON-SENSE   IN   LAW 

of  coercion  and  to  formulate  rules  provided 
with  the  sanction  of  force  ?  An  attempt  to 
answer  this  question  is  supplied  by  a  com- 
monly accepted  definition  of  law,  which  mns 
thus  :  A  law  is  a  rule  of  conduct  imposed  and 
enforced  by  the  sovereign.  This  definition 
proceeds  historically  from  the  famous  teaching 
of  Hobbes.  He  contended  that  men  are  by 
nature  enemies  one  to  another,  and  that  the 
original  state  of  mankind  was  a  war  of  every 
one  against  every  one  else.  The  intolerable 
violence  and  anxiety  of  such  a  state  was 
removed  by  a  complete  renunciation  on  the 
part  of  all  individuals  of  their  personal 
freedom  of  action  and  by  the  creation  of  an 
artificial  being,  i.e.  the  State,  the  Leviathan 
in  whose  body  every  one  is  merged  as  a 
particle  or  member,  and  whose  sovereign  will 
governs  every  individual  with  unrestricted 
authority.  Hobbes  lived  at  the  time  of  the 
great  rebellion  of  the  seventeenth  century, 
and  the  fierce  conflicts  of  the  Civil  War 
imbued  him  with  a  craving  for  order  at  any 
price.  He  thought  the  best  means  of  securing 
this  order  was  to  submit  to  the  despotic  rule 
of  a  monarch.  But  the  absolute  power  of  a 
Parliament  could  be  made  to  satisfy  the 
definition  equally  well.     It  has,  for  instance, 


LEGAL   RULES  31 

been  said  of  the  Parliament  of  England  that 
it  may  do  anything  except  tm'n  a  man  into 
a  woman,  or  vice  versa.  It  is  not  the  manner 
in  which  laws  are  elaborated,  but  their  origin 
in  the  will  of  the  persons  possessed  of  public 
authority  that  is  material  to  the  theory  in 
question.  Hobbes'  teaching  was  accepted  by 
Austin,  and,  through  Austin,  by  most  English 
jurists.  Nor  are  Continental  writers  wanting 
to  support  it.  As  for  customary  law,  which 
is  generally  supposed  to  grow  slowly  out  of 
public  opinion,  jurists  who  follow  Hobbes  and 
Austin  account  for  it  by  saying  that  so  far 
as  it  has  any  legal  application  custom  must 
be  accepted  by  the  State.  The  objection  that 
English  common  law  is  to  a  great  extent 
created  not  by  direct  commands  of  the 
government,  but  by  pronouncements  of  the 
judges,  has  been  met  by  a  modification  of 
Austin's  formula  :  "  Law  is  the  aggregate  of 
rules  recognized  and  acted  on  by  courts  of 
justice."  But  this  modification  does  not 
change  the  fundamental  principle  of  the 
doctrine,  since  it  is  clear  that  courts  of 
justice  derive  their  binding  force  from  the 
State.  The  direct  purpose  for  which  judges 
act  is,  after  all,  the  application  of  law,  and 
therefore   they   cannot    be    said   to    exercise 


S->  COMMON-SENSE   IN   LAW 

independent  legislative  functions.  A  defini- 
tion of  law  starting  from  their  action  would 
therefore  be  somewhat  like  the  definition  of 
a  motor-car  as  a  vehicle  usually  driven  by  a 
chauffeur.  The  difference  between  the  decree 
of  an  absolute  monarch,  a  statute  elaborated 
by  Parliament,  and  a  legal  principle  formulated 
by  judges,  is  technical  and  not  fundamental  : 
all  three  proceed  from  the  authority  of  a 
sovereign.  We  shall  have  to  treat  of  the 
action  of  the  courts  at  some  length  when  we 
come  to  consider  the  sources  of  law. 

Let  us  now  turn  back  to  the  original  and 
simpler  definition  :  "  Law  is  a  rule  of  conduct 
imposed  and  enforced  by  the  sovereign."  The 
application  of  the  theory  may  be  illustrated 
as  follows  : 

There  is  my  individual  will,  A,  which  I 
should  naturally  follow  if  left  entirely  free. 
But  as  there  are  numbers  of  other  individual 
wills,  B,  C,  D,  etc.,  some  one  predominant 
will  must  intervene  to  regulate  all  these 
divergent  tendencies.  A  general  compromise 
must  be  effected  and  one  sovereign  will,  say 
X,  set  up.  It  may  be  that  I  am  in  a  position 
to  occupy  this  vantage-ground,  and  in  so  far 
my  will,  A,  will  be  equal  to  X :  thus  the  will 
of  a  Cromwell  or  of  a  Napoleon  was  the  will 


LEGAL   RULES  83 

of  the  State  to  which  all  other  private  wills 
had  to  conform.  It  is  to  be  noted  that  the 
theory  approaches  law  only  from  its  formal 
side.  It  does  not  admit  of  any  examination 
of  the  contents  of  legal  propositions  or  of 
any  inquiry  into  the  character  of  the  political 
power  assumed  to  be  the  sovereign  authority 
in  the  State.  Law  is  a  vehicle  which  may 
carry  any  kind  of  goods.  A  harsh,  unjust 
enactment  is  as  valid  a  rule  as  the  most 
righteous  law. 

2.  It  is  not  difficult  to  discern  the  weak 
points  of  this  doctrine.  Surely,  as  has  been 
urged  by  Sir  H.  Maine,  the  legal  process 
cannot  wait  until  a  community  has  definitely 
established  sovereign  authority  before  it  will 
recognize  the  existence  of  laws.  There  have 
been  and  there  still  are  many  political  com- 
binations among  barbaric  or  half-civilized 
nations  in  which  it  would  be  impossible  to 
ascertain  exactly  where  sovereignty  resides 
and  whether  we  have  to  deal  with  a  state, 
a  tribe,  a  society  under  religious  authority, 
or  a  society  under  concurrent  authorities. 
How  shall  we  apply  Austin's  formula  to  the 
Jews  ruled  by  the  Talmud,  or  to  the  mediaeval 
nations  of  Western  Europe  distracted  by  their 
allegiance  to  King  or  Emperor  on  the  one 


34  COMMON-SENSE   IN   LAW 

side,  and  to  the  Pope  on  the  other  ?  It  will 
not  help  us  to  seek  refuge  in  the  contention 
that  all  these  antiquities  are  of  small  moment 
in  comparison  with  the  great  scientific  juris- 
prudence of  the  modern  State.  Some  of  the 
most  fundamental  of  our  laws — e.g.  those 
which  regulate  marriage,  succession,  testa- 
ments, land  tenure,  etc. — were  evolved  during 
this  very  period  :  that  is  why  legal  historians 
have  so  much  to  do  with  the  study  of  antiquity. 
Indeed,  I  wonder  what  meaning  ought  to  be 
attached,  from  the  Austinian  point  of  view, 
to  a  body  of  rules  like  the  Canon  Law — surely 
a  sufficiently  important  department  of  legal 
study  ?  We  cannot  disregard  the  roots  of 
legal  institutions  merely  because  they  happen 
to  be  embedded  in  antiquity.  But  it  is  not 
only  in  ancient  societies  that  we  find  legal 
rules  which  cannot  be  considered  as  the  com- 
mands of  a  political  sovereign  :  the  same  is 
often  true  to-day.  For  instance,  it  would 
be  rather  difficult  to  say  where  sovereignty, 
in  the  sense  of  habitual  predominance,  resides 
in  a  modern  commonwealth  like  that  of  the 
United  States  of  America.  Not  in  Congress, 
because  its  enactments  may  be  overruled  by 
the  Supreme  Court  as  being  contrary  to  the 
Constitution.     Not    in    the    Supreme    Court, 


LEGAL   RULES  35 

because  its  decisions  are  judicial  and  not 
governmental.  Not  in  the  people  at  large, 
because  it  is  not  a  juridical,  but  a  social  and 
historical  entity.  Not  in  the  Conventions 
for  the  reform  of  the  Constitution,  because 
they  operate  only  on  very  exceptional  occasions 
and  are  fettered  in  making  their  decisions  by 
very  restrictive  rules  as  to  majorities  :  and  a 
sovereign  trammelled  in  this  way  would  be  a 
contradiction  in  terms.  The  truth  seems  to 
be  that  the  basis  of  law  is  provided  not 
by  one-sided  command,  but  by  agreement. 
Again,  there  exist  within  states  many  social 
bodies  which  possess  a  certain  autonomy. 
Since  the  Reformation  and  the  partial  separa- 
tion of  Church  and  State,  political  sovereigns 
have  to  a  great  extent  been  obliged  to  accept 
the  legal  organization  of  Churches  as  estab- 
lished facts.  The  Church  of  England  has 
been  reformed  outwardly  by  Acts  of  Parlia- 
ment, but  he  would  be  a  bold  man  who  would 
assert  that  its  external  organization  is  entirely 
due  to  the  decrees  of  the  political  sovereign. 
English  ecclesiastical  institutions  certainly 
owe  a  great  deal  both  to  the  Canon  Law  of 
Catholicism  and  to  the  Church  organizations 
of  Luther  and  Calvin.  And  what  of  the 
religious  groups  which  do  not  "  conform  "  ? 


86  COMMON-SENSE   IN   LAW 

Is  their  position  to  be  defined  merely  from 
the  point  of  view  of  legal  tolerance  ?  As  a 
matter  of  fact  concessions  have  been  made 
repeatedly  to  communities  which  have  exerted 
the  strongest  possible  discipline  over  their 
members,  who  have  strenuously  maintained 
it  even  in  opposition  to  the  commands  of  the 
political  sovereign.  The  formation  of  autono- 
mous spheres  of  law  within  the  Churches  is 
only  one  example  of  a  widespread  process. 
Local  circles  as  well  as  professional  unions 
may  create  separate  rules  of  law ;  the  mediaeval 
law  of  Germany,  for  instance,  was  particularly 
wealthy  in  examples  of  such  growths  :  there 
were  special  laws  of  the  peasantry,  of  the 
townspeople,  of  crafts  and  guilds,  of  feudal 
societies,  etc.,  and  the  dependence  of  all  these 
formations  on  the  superior  law  of  principalities 
and  of  the  empire  was  very  lax.  In  England, 
such  particularistic  tendencies  never  got  the 
upper  hand,  but  still  the  customs  of  rural 
townships  and  boroughs  arose  from  a  kind  of 
municipal  autonomy  and  had  to  be  recognized 
to  a  large  extent  by  early  common  law. 
Nowadays  municipal  by-laws,  statutes  and 
customs  of  corporations,  associations  and 
trade  unions  of  all  sorts  arise  in  abundance. 
They  are,  of  course,  subordinated  to  the  laws 


LEGAL   RULES  37 

of    the    kingdom    as    interpreted    by    royal 
courts,    but   the  hierarchy   of   legal   validity 
does   not   affect  their  origin   and  contents  ; 
they  are  produced  not  by  the  Commonwealth, 
but  by  societies   included  in  it ;  they  have 
their    own    sanctions    (fines,    curtailment    of 
privileges,  exclusion) ;  and  the  ultimate  com- 
promise with  the  law  of  the  Commonwealth 
is  at  bottom  the  outcome  of  a  struggle  for 
power  between  central  and  local  authorities. 
The  results  may  differ  in  various  epochs,  and! 
it  is  by  no  means  certain  that  after  a  period  f 
of  gradual  centralization  of  law  by  the  State, ! 
a  movement  in  the  opposite  direction  of  local  | 
and  professional  autonomy  may  not  set  in.      | 

If  the  notion  of  sovereignty  contained  in 
Austin's  definition  does  not  bear  close  scrutiny, 
no  more  does  the  rule  of  conduct,  as  under- 
stood by  him  and  by  his  followers.  It  is 
essentially  a  command  ;  and  it  may  well  be 
asked  whether  law  is  binding  only  on  persons 
who  receive  the  command  or  on  those  who 
give  it  as  well.  The  second  part  of  every 
legal  rule,  its  sanction,  is  an  appeal  to  force. 
In  the  forging  of  the  links  of  a  chain  of 
sanctions,  it  is  contended,  we  must  come  to 
a  point  when  arbitrary  power  remains  master 
of  the  ground.    A  Parliament  is  manifestly  not 


38  COMMON-SENSE   IN   LAW 

subject  to  the  punitive  action  of  the  Courts ; 
and  in  the  same  way  in  any  monarchical 
country,  the  King  is  not  amenable  to  law, 
"  can  do  no  wrong."  If  coercion  be  the 
essence  of  law,  then  law  is  binding  only  on 
subjects  and  on  subordinates,  while  the 
highest  persons  in  the  State  are  above  and 
outside  the  law\ 

But  if  this  is  so,  why  should  common 
opinion  lay  so  much  stress  on  the  opposi- 
tion between  right  and  might  ?  And  why 
should  jurists  trouble  about  Constitutional 
Law  ?  Evidently  what  is  binding  on  the 
subject  by  the  strength  of  ultimate  physical 
coercion  seems  to  be  binding  on  the  sovereign 
by  the  strength  of  a  moral  sanction  :  even  if 
the  King  can  do  no  wrong  in  the  sense  that 
he  is  not  amenable  to  punishment  by  his  own 
Courts,  yet  he  is  bound  to  respect  the  laws, 
because  he  has  recognized  them  and  pledged 
his  faith  to  follow  them. 

The  German  Emperor,  for  instance,  is 
enjoined  by  el.  17  of  the  Constitution  of  the 
Empire  to  promulgate  laws  enacted  by  the 
Reichstag  and  confirmed  by  him;  he  is 
forbidden  by  el.  II,  2  to  declare  war  without 
the  consent  of  the  Reichstag ;  he  is  bound  by 
cl.  12  and  13  to  summon  the  Reichstag  every 


LEGAL   RULES  39 

year,  etc.  But  suppose  he  neglected  to  pro- 
mulgate a  law,  or  declared  war  on  his  own 
authority,  or  declined  to  summon  the  Reich- 
stag to  its  yearly  session.  All  these  acts 
would  obviously  be  done  in  infringement  of 
legal  rules,  and  yet  there  would  be  no  direct 
coercion  available  against  the  head  of  the 
State. 

These  objections  ought  to  make  us  realize 
that  law  has  to  be  considered  not  merely  from 
the  point  of  view  of  its  enforcement  by  the 
Courts  :  it  depends  ultimately  on  recognition. 
Such  recognition  is  a  distinctly  legal  fact, 
although  the  enforcement  of  a  recognized 
rule  may  depend  on  moral  restraint,  the  fear 
of  public  opinion,  or,  eventually,  the  fear  of 
a  popular  rising. 

Another  difficulty  arises  from  the  position 
of  international  law.  There  is  a  set  of  rules 
recognized  by  the  most  powerful  and  civilized 
commonwealths  of  mankind  and  productive 
of  innumerable  consequences  in  practice :  and 
yet  the  element  of  direct  coercion  is  absent 
from  them.  There  is  no  other  coercive  force 
to  ensure  the  maintenance  of  the  rule  that 
the  Geneva  Cross  protects  a  hospital  from 
destruction,  or  that  Dum-dum  bullets  cannot 
be  used  in  warfare,  than  the  respect  of  civilized 


40  COMMON-SENSE   IN   LAW 

coninmnities  for  public  opinion  and  for  their 
own  honour,  as  far  as  it  is  pledged  by  the  fact 
of  their  having  signed  certain  conventions.  It 
may  even  happen  that  when  very  material  in- 
terests intervene,  many  obvious  rules  and  cus- 
toms of  international  law  are  infringed ;  thus 
the  rule  that  a  state  should  not  attack  powers 
vnih  whom  it  is  at  peace  was  infringed  by 
Great  Britain  when  Copenhagen  was  bom- 
barded in  1807  for  fear  that  the  Danish  fleet 
should  be  used  by  Napoleon.  Again,  Austria- 
Hungary  the  other  day  turned  the  occupation 
of  Bosnia  and  Herzegovina  into  annexation 
without  obtaining  leave  from  the  signatories 
of  the  Treaty  of  Berlin.  By  reason  of  this 
absence  of  coercive  sanction  some  jurists 
refuse  to  international  law  the  attributes  of 
law  properly  so-called,  and  look  upon  it 
merely  as  a  form  of  positive  morality.  This 
is,  however,  going  much  too  far ;  international 
legal  rules  carry  a  great  weight  of  practical 
authority;  and  in  their  actual  content,  they 
are  exactly  similar  to  ordinary  laws,  and  in 
many  cases  have  nothing  to  do  with  ethics. 
Take  the  rule  that  a  state  exercises  juris- 
diction over  the  high  seas  within  three  miles 
from  its  shores  :  how  does  this  differ  from 
an    ordinary    rule    of    constitutional     law? 


LEGAL   RULES  41 

Clearly  not  in  its  essence,  though  perhaps  in 
the  manner  of  its  formulation  and  enforcement. 
The  inference  seems  to  be  that  international 
law  is  truly  a  department  of  law  so  far  as  law 
is  a  declaration  of  right,  but  that  it  is  peculiar 
as  regards  the  element  of  sanction.  Li  this 
respect  it  may  be  called  imperfect,  or  less  than 
perfect  law. 

One  more  characteristic  feature  should  be 
mentioned  in  this  connection.  As  regards 
the  enforcement  of  civil  liabilities,  law  is 
powerless  to  provide  a  sanction  so  complete 
as  to  amount  to  a  guarantee  against  injury 
and  loss  :  it  can  do  no  more  than  intervene 
on  behalf  of  the  party  claiming  a  right,  but 
whether  the  claim  can  be  satisfied  or  not  will 
in  numberless  cases  depend  on  circumstances 
over  which  law  has  no  control.  Suppose  a 
Court  has  awarded  heavy  damages  as  the 
result  of  a  collision  in  the  road  by  which  you 
have  suffered  bodily  injury ;  the  party  against 
whom  the  decision  is  awarded  turns  out  to  be 
a  person  of  small  means  entirely  incapable  of 
paying  the  compensation.  Is  not  the  legal 
rule  provided  with  incomplete  sanction  ?  Or 
take  the  instance  of  the  responsibility  of 
agents  of  a  Trade  Union  for  damages  inflicted 
by  illegal  interference  with  your  right  to  hire 


42  COMMON-SENSE   IN    LAW 

workmen ;  are  you  sure  their  personal  liability 
would  be  an  adequate  guarantee  against  your 
suffering  heavy  losses  in  the  event  of  a  strike  ? 
Hardly;  and  yet  the  rules  laid  down  by  law 
in  such  cases  would  be  emphatic  and  clear, 
though  provided  with  insufficient  sanction. 

The  upshot  of  this  discussion  of  the  element 
of  direct  coercion  seems  to  be  that,  though 
commonly  present,  it  is  not  absolutely  neces- 
sary to  constitute  a  legal  rule ;  and  that  while 
we  may  look  upon  it  as  the  most  convenient 
means  for  enforcing  law,  we  cannot  regard  it 
as  the  essence  of  legal  relations.  Clearly  it 
has  to  be  supplemented  by  restraints  based 
on  personal  recognition  and  on  public  opinion. 
Therefore  it  is  impossible  to  confine  laAv 
within  the  terms  of  such  a  purely  formal 
definition  as  is  involved  in  its  consideration 
as  a  set  of  commands,  quite  apart  from  any 
contents.  Law  aims  at  right  and  justice, 
however  imperfectly  it  may  achieve  this  aim 
in  particular  cases.  If  we  omitted  this 
attribute  from  our  definition,  we  should  find 
it  very  difficult  to  draw  the  line  between  a 
law  and  any  kind  of  arbitrary  order  as  to 
conduct,  e.g.  the  levying  of  regular  black- 
mail by  a  criminal  association.  There  must 
be   a   certain    balance    between   justice   and 


LEGAL   RULES  43 

force  in  every  system  of  law;  and  therefore 
it  is  impossible  to  give  a  definition  of  law 
based  exclusively  on  coercion  by  the  State. 

3.  An  important  step  is  made  when  atten- 
tion is  turned  from  the  means  to  the  end, 
from  compulsion  to  the  substance  of  legal 
rules.  What  is  the  end  for  the  sake  of  which 
human  beings  submit  to  constraint  ?  Kant 
came  to  the  conclusion  that  the  aim  of  law 
is  freedom,  and  that  the  fundamental  process 
of  law  is  the  adjustment  of  one's  freedom  to 
that  of  every  other  member  of  the  community. 
This  principle  was  expressed  by  him  in  the 
famous  sentence  :  "  Act  in  such  a  way  that  your 
liberty  shall  accord  with  that  of  all  and  of  each 
one."  The  notion  of  freedom,  however,  was 
not  happily  selected,  since  it  is  obvious  that 
the  adjustment  effected  by  law  must  consist 
in  the  curtailment  of  individual  freedom,  and 
freedom,  as  usually  understood,  merely  opens 
the  way  for  possible  action,  but  does  not 
indicate  the  course  action  should  take. 

One    of    the    leading    nineteenth    century 

jurists,  Ihering,  found  the  end  of  law  in  the 

delimitation  of  interests?-     Freedom  to   exert 

^  Ihering  himself  was  mainly  concerned  with  the  nature 
of  rights  :  as  to  legal  rules,  the  consequences  of  his  doctrine 
have  been  summarized  by  Korkunov,  The  Theory  of  Law 
(Hastings'  translation,  p.  52). 


44  COMMON-SENSE   IN   LAW 

one's  will  seemed  meaningless  to  him :  all 
our  actions  are  suggested  by  a  striving 
towards  some  kind  of  value,  either  physical 
or  moral,  and  the  responsible  task  of  the 
law  supported  by  the  State  is  to  apportion 
individual  spheres  of  interests  and  to  uphold 
the  repartition  thus  effected.  It  seems,  how- 
ever, that  by  making  the  State  a  judge  of 
conflicting  interests,  Ihering  has  saddled  it 
with  a  heavy  responsibility  which  is  not 
necessarily  implied  in  the  notion  of  law,  and 
is  easily  liable  to  misconception.  Neither  the 
State  nor  its  law  can  assume  the  impossible 
task  of  influencing  all  the  interests  involved 
in  social  life  and  of  guiding  individuals  in 
the  selection  and  management  thereof.  The 
State  may  for  various  reasons  pick  out  some 
particular  spheres  of  interests  for  special 
supervision — say  public  health  or  education. 
But  it  is  not  bound  to  do  so  in  all  directions 
merely  because  it  wields  the  force  of  law. 
What  it  is  bound  to  do  is  to  see  that  the  wills 
of  the  members  of  the  community  do  not 
clash  while  striving  towards  the  attainment 
of  their  ends.  It  has,  as  it  were,  to  lay  down 
and  enforce  the  rule  of  the  road  on  which 
individuals  are  moving.  Some  civilized  states 
have    never    gone    further    than    this ;    other 


LEGAL   RULES  45 

governments  have  undertaken  to  solve  or  to 
assist  in  solving  economic  and  cultural  prob- 
lems ;  but  such  an  extension  of  aim  does  not 
commit  us  to  a  definition  of  law  which  would 
make  social  policy  the  essential  element  of 
legal  arrangements.  An  energetic  social  policy- 
is,  after  all,  only  a  manifestation  of  the  will 
of  the  State  as  a  political  corporation  and,  as 
such,  it  constitutes  one  of  the  objects  for  legal 
delimitation  and  protection — but  only  one 
among  many.  It  is  true  that  in  some  in- 
stances— e.g.  minors,  idiots,  spendthrifts — 
law  steps  in  to  protect  the  interests  of  the 
individual,  while  at  the  same  time  it  recog- 
nizes that  his  will  is  insufficient  to  make  his 
acts  legally  valid.  But  is  not  this  another 
way  of  saying  that  the  individual  will,  before 
it  can  claim  recognition  and  protection  from 
the  law  of  the  State,  has  to  justify  itself  as 
one  which  is  independent,  reasonable  and 
complete?  When  one  of  these  attributes  is 
lacking,  law  has  to  supply  substitutes  or 
complements  in  the  shape  of  guardians  and 
curators,  just  as  it  may  have  to  recognize 
representatives  and  trustees.  It  still  remains 
true  that  the  decision  as  to  interests  is  left 
to  some  will  or  other,  either  natural  or 
artificial. 


46  COMMON-SENSE   IN   LAW 

4.  Let  us,  then,  start  from  Ihering's  definition 
and  carry  it  one  step  further  by  substituting 
volition  for  interest.  We  may  take  it  for 
granted  that  human  wills  pursue  their  several 
interests  when  free  to  exert  themselves.  The 
problem  consists  in  allowing  such  an  exercise 
of  each  personal  will  as  is  compatible  with  the 
exercise  of  other  wills.  As  soon  as  a  rule  of 
the  road  is  established  to  prevent  collisions 
between  persons  moving  in  the  same  thorough- 
fare, a  legal  rule  comes  into  existence  :  it  may 
be  reached  by  agreement  or  by  custom,  or 
imposed  by  higher  authority,  but  its  legal 
essence  consists  in  the  fact  that  it  is  recognized 
as  a  rule  of  conduct  by  the  travellers  on  the 
road.  The  fact  that  it  may  sometimes  be 
ignored  or  infringed  does  not  abolish  it  if  it 
is  usually  respected.  Notice  that  it  is  not  a 
rule  of  morality,  but  of  convenience.  It 
spring's  not  from  kindness,  or  generosity,  or 
honesty,  but  from  the  view  that  one's  own 
interests  are  connected  with  those  of  others. 
It  may  assume  all  the  aspects  of  a  law  im- 
posed by  the  State  and  serve  as  a  basis  for 
the  award  of  damages  and  the  punishment 
of  negligence  :  but  in  its  simplest  expression 
it  is  an  agreement  to  drive  to  the  left  or  to 
the  right,  as  the  case  may  be,  when  meeting 


LEGAL   RULES  47 

another  vehicle ;  in  other  words,  it  is  a  limita- 
tion of  one's  freedom  of  action  for  the  sake 
of  avoiding  collision  with  others.  The  rule 
of  the  road  leaves  every  person  moving  under 
its  direction  severely  to  himself,  but  in  social 
life,  as  we  know,  men  have  not  only  to  avoid 
collisions,  but  to  arrange  co-operation  in  all 
sorts  of  ways,  and  the  one  common  feature 
of  all  these  forms  of  co-operation  is  the 
limitation  of  individual  wills  in  order  to 
achieve  a  common  purpose.  Now,  what  is 
limitation  for  one  will  is  power  for  another. 
When  I  restrict  my  range  of  action  out  of 
consideration  for  another  person,  or  for  a 
body  of  men,  or  for  a  common  undertaking, 
I  concede  power  to  this  other  person,  or  to 
the  body  of  men,  or  to  the  managers  of  the 
common  undertaking,  and  increase  their  range 
of  actions  and  the  power  of  their  wills.  And 
in  reality  the  whole  of  society  is  built  up  by 
such  combinations  of  social  power  under  the 
direction  of  legal  rules.  I  think  we  maj'  say 
that  the  aim  of  law  is  to  regulate  the  attribution 
and  exercise  of  power  over  persons  and  things 
in  social  intercourse. 

Let  us  dwell  for  a  moment  on  the  meaning 
of  the  term  "  power."  The  word  is  of  course 
used  sometimes  in  the  material  sense  :  when 


48  COMMON-SENSE   IN   LAW 

we  speak  of  water-power  or  electric-power  or 
horse-power,  we  think  of  forces  of  nature  as 
far  as  they  can  be  subordinated  to  human 
voHtion;  but  any  combination  creating  social 
forces  is  also  commonly  described  as  power. 
In  this  sense,  we  speak  not  only  of  political 
authority,  but  of  all  forms  of  juridical  com- 
pulsion. The  "  power "  conferred  on  an 
attorney  or  a  plenipotentiary,  for  example, 
appears  as  a  delegation  within  a  specified 
range  of  the  influence  exerted  by  the  principal. 
Or  we  may  take  an  illustration  of  the  use  of 
the  term  "  power  "  in  the  sense  of  a  legal 
range  of  action  from  the  practice  of  "  testa- 
mentary disposition  " — i.e.  the  making  of 
wills.  When  a  person  makes  a  will  in  accord- 
ance \vith  the  rules  established  by  law,  he 
expresses  wishes  which  will  be  upheld  by  the 
community  at  a  time  when  he,  the  testator, 
will  be  dead  and  unable  to  exercise  any 
physical  power  whatever.  In  this  way,  the 
attribution  of  power  to  a  testator  is  clearly 
dependent  on  the  authority  of  the  law-making 
community.  Thus  it  may  be  said  that  all 
forms  of  social  combination  are  set  in  motion 
by  power  distributed  according  to  a  certain 
order.  If  the  limitations  of  will  which  con- 
dition power  are  something  more  than  casual 


LEGAL   RULES  49 

devices,  and  are  determined  in  a  constant 
manner,  rules  arise  which  are  legal  in  their 
essence,  even  apart  from  the  amount  of  con- 
straint which  they  may  contain.  When  two 
persons  sit  down  to  play  a  game  of  cards,  they 
subordinate  their  individual  wills  to  the  rules 
of  the  game,  and  if  one  of  the  players  chooses 
to  disregard  those  rules,  the  other  will  remon- 
strate and  perhaps  abandon  the  game.  From 
the  technical  point  of  view  this  result  may  be 
considered  as  an  instance  of  the  sanction  of 
nullity.  The  presence  of  a  superior  authority 
is  not  necessary  for  the  existence  of  such  a 
rule,  and  the  same  may  be  said  of  the  rules 
governing  many  other  social  groups. 

In  defining  law  we  have  to  start  from  a  given 
society,  not  necessarily  from  a  state,  because 
every  human  society  is  bound  to  set  up 
certain  laws  in  order  that  the  individuals 
composing  it  should  not  go  each  his  own  way 
instead  of  co-operating  towards  the  formation 
of  a  higher  unity.  A  casual  concourse  of 
individuals — a  group  of  passers-by  listening 
to  a  preacher  in  Hyde  Park — is  not  a  society. 
But  if  a  number  of  persons  agree  to  act  in  a 
certain  way  when  they  meet,  say  to  assemble 
on  certain  days  to  worship  together,  they 
form  a  society  for  a  definite  purpose,   and 


50  COMMON-SENSE   IN   LAW 

must  submit  to  certain  rules  laid  down  in  one 
way  or  another  if  they  wish  to  achieve  that 
purpose.  The  individual  ceases  to  be  quite 
free,  and  has  to  co-ordinate  his  actions  with 
those  of  his  fellows,  while  the  purpose  for 
which  the  union  is  formed  provides  the  whole 
community  with  an  aim  which  has  to  be 
achieved  by  decisions  similar  to  the  acts  of 
will  of  a  live  being.  This  collective  will  is, 
so  far  as  the  society  is  concerned,  superior 
to  the  will  of  any  individual  member.  A 
joint  stock  company,  a  learned  society,  a 
city  corporation,  a  county,  a  Free  Church, 
or  the  Catholic  Church,  are  societies  with 
corporate  aims  and  wills.  They  enact  laws 
regulating  the  conduct  of  their  members. 
A  state  is  a  society  of  the  same  kind,  although 
its  aims  are  more  complex — protection  of 
citizens,  dominion  over  territory,  judicial 
power,  economic  or  cultural  policy,  etc.  The 
government  and  the  laws  of  a  commonwealth, 
although  towering  over  all  other  forms  of 
association  and  possibly  regulating  and  re- 
stricting them,  are  still  essentially  of  the  same 
kind  as  the  rules  which  hold  together  a  private 
union  or  a  local  body. 

Lav,'s  are  made  to  be  obeyed  and  enforced. 
The  wills  and  actions  of  members  of  a  society 


LEGAL   RULES  51 

are  not  regulated  merely  by  convenience,  or 
voluntary  resolve,  or  habit,  or  inclination, 
or  sense  of  duty,  but  by  social  necessity. 
Unless  the  wills  and  actions  of  the  members 
fit  together  like  the  cogs  of  a  machine,  or 
rather  like  the  organs  of  a  living  body,  the 
society  cannot  exist.  A  certain  amount  of 
irregularity  may  have  to  be  tolerated  in  any 
human  contrivance,  but  should  every  member 
allow  himself  to  act  as  if  his  adhesion  were 
merely  casual  and  voluntary,  the  association 
would  not  work,  and,  instead  of  promoting 
its  distinctive  aims,  would  be  distracted  by 
the  vagaries  of  its  members.  As  far  as  these 
aims  go,  the  will  of  the  community  is  a 
superior  authority,  and  therefore  the  rules 
imposed  by  it  ought  to  have  a  binding  force. 
That  is  why  in  most  cases  such  rules  are 
provided  with  sanctions,  with  threats  of 
unpleasant  consequences  in  case  of  infringe- 
ment :  fines,  payment  of  damages,  temporary 
or  perjDetual  exclusion,  deprivation  of  spiritual 
boons  {e.g.  of  the  Sacrament),  excommunica- 
tion or  curse  in  the  case  of  religious  com- 
munities, imprisonment  or  even  death  in 
case  of  the  infringement  of  laws  of  a  state. 
The  enforcement  of  laws  by  execution  or  by 
the  infliction  of  punishment  is  not,  however. 


52  COMMON-SENSE   IN   LAW 

indispensable  for  the  constitution  of  a  legal 
rule.  It  is  sufficient  that  a  sanction  should 
be  present  in  most  cases,  though  on  excep- 
tional occasions  there  may  be  a  miscarriage 
of  justice  in  this  respect :  a  debtor  may  be 
insolvent,  a  criminal  may  escape.  Certain 
laws  again  would  lack  direct  sanction  and 
would  depend  for  their  observance  on  recog- 
nition by  the  persons  concerned.  Altogether 
we  must  remember  that  sooner  or  later  we 
come  to  a  point  where  law  is  obeyed  not  on 
account  of  material  compulsion,  but  for  other 
reasons — in  consequence  of  reasonable  accept- 
ance or  instinctive  conformity,  or  habit, 
or  absence  6x  organized  resistance.  If  it 
were  not  so,  how  could  commonwealths  and 
legal  systems  exist  ?  The  number  of  people 
who  can  resort  to  command  and  coercion  is 
generally  infinitesimal  in  comparison  with  the 
number  of  those  who  have  to  be  led  and 
eventually  coerced.  It  is  only  as  long  as 
criminals  are  in  a  minority  and  as  long  as 
the  nation  at  large  remains  law-abiding  that 
law  can  have  its  way.  This  means  that  it 
is  not  the  material  possibility  of  coercion  so 
much  as  the  mental  habit  of  recognizing  rules 
imposed  by  social  authority  that  is  decisive 
in  regard  to  the  existence  of  laws. 


LEGAL   RULES  58 

5.  Laws  are  rules,  but  what  is  a  rule  in  the 
juridical  sense  ?  A  rule  may  be  defined  as  a 
direction  as  to  conduct.  Each  of  these  terms 
requires  special  examination. 

{a)  A  direction  is  not  necessarily  a  com- 
mand :  it  includes  a  declaration  of  what  is 
right  and  what  is  wrong.  A  signpost  on 
your  way  does  not  command  you  to  go  to 
the  right  or  to  the  left,  but  it  tells  you  that 
if  you  go  to  the  right  you  will  reach  place  A, 
which  we  may  suppose  to  be  your  destination ; 
if  you  go  to  the  left  you  will  reach  place  B, 
that  is,  you  will  go  wTong  as  far  as  your  aim 
is  concerned.  Even  so  in  law  :  there  are  a 
number  of  legal  rules  which  do  not  go  further 
than  to  state  the  conditions  which  society 
considers  to  be  necessary  if  a  person  wishes 
to  give  effect  to  a  certain  purpose.  If  I 
want  to  sell  my  house,  I  have  to  do  it  by 
means  of  a  -wTitten  instrument  couched  in  a 
certain  form.  Should  I  attempt  to  sell  it  in 
another  way,  say  by  delivering  it  to  the 
purchaser  before  witnesses,  the  transaction 
will  have  no  legal  effect  and  I  shall  not  be 
able  to  claim  the  price  agreed  upon.  I  ought 
to  have  followed  the  declaration  of  the  Statute 
of  Frauds,  s.  4,  which  is  a  law  provided  with 
a  sanction  of  nullity.     On  the   other  hand. 


54  COMMON-SENSE   IN   LAW 

there  arc  many  laws  which  carry  a  punitive 
sanction.  This  means  that  the  society  which 
imposes  them  considers  them  binding  not  only 
in  regard  to  the  mutual  relations  of  its  mem- 
bers, but  also  in  regard  to  its  own  interests 
directly  or  indirectly.  If  a  person  who  has 
made  an  invalid  sale  insists  on  keeping  money 
on  the  assumption  that  the  sale  was  a  regular 
one,  the  State  will  take  this  money  from  him 
and  eventuall}'  punish  him  for  defying  the 
authority  of  a  declaration  made  by  the 
legislative  organ  of  the  State.  A  citizen 
submits  to  a  legal  rule  not  as  to  an  arbitrary 
command,  but  as  to  a  declaration  or  right 
which  is  supported  by  the  authority  of  the 
Commonwealth  or  of  a  given  association. 

{b)  Legal  rules  are  intended  to  direct  the 
conduct  of  men,  that  is,  their  actions  and 
outward  behaviour  :  they  do  not  aim  at 
controlling  men's  thoughts  and  desires.  Tlie 
object  of  law  is  to  ensure  social  order,  and 
therefore  it  has  to  regulate  the  relations 
between  men,  and  not  their  inner  conscious- 
ness. The  latter  task  has  been  attempted 
sometimes,  e.g.  in  prosecutions  for  heresy, 
but  the  motives  in  such  cases  have  not  been 
legal.  What  is  wrong  from  our  present  point 
of  view  in  such  prosecutions  is  not  the  fact 


LEGAL   RULES  55 

of  proceeding  against  opinions  considered  to  be 
false,  but  the  manner  in  which  such  proceed- 
ings were  taken.  A  Church  has  a  perfect 
right  to  condemn  opinions  which  it  deems  to 
be  false  or  immoral ;  it  may  proceed  against 
the  holders  of  such  opinions  by  its  own 
peculiar  means — by  spiritual  penances  and 
ultimately  by  excommunication.  But  the 
extradition  of  the  culprit  to  the  secular  arm, 
the  attempt  to  enforce  right  creed  by  the 
help  of  the  police  and  of  the  hangman,  are 
unjustifiable  from  our  present  point  of  view. 
At  the  same  time  conduct  in  more  or  less 
advanced  societies  is  not  considered  as  a 
series  of  purely  external  phenomena.  It  is 
not  the  same  kind  of  occurrence  as  the  fall 
of  a  stone  or  a  stroke  of  lightning.  It  is  the 
product  of  will,  and  the  will  is  called  into 
action  by  motives.  This  being  so,  modern 
jurisprudence  takes  care  to  distinguish 
whether  conduct  is  the  result  of  ordinary 
consciousness  and  reason,  or  is  brought  about 
by  agencies  Avhich  deprive  it  of  this  de- 
liberate character.  Lunatics  kill  men  every 
now  and  then,  and  are  tried  for  homicide; 
but  if  examination  has  shown  the  deed  to 
be  the  result  of  a  disordered  mind,  it  is 
considered  in  the  same  light  as  a  phenomenon 


56       common-sf:nse  in  law 

of  nature,  and  does  not  involve  criminal  re- 
sponsibility. The  slayer  will  be  sent  to  an 
asylum  or  otherwise  put  under  restraint, 
but  this  is  a  measure  of  prceaution,  not  of 
punishment;  it  may  happen  that  he  will  be 
set  at  liberty  again  after  recovery.  In  the 
same  way  an  action  that  would  be  a  misdeed 
if  done  by  an  adult  is  merely  a  misfortune 
when  done  by  a  child  :  a  boy  under  seven 
could  not  be  found  guilty  of  arson  for  setting 
fire  to  a  haystack. 

Then  again,  certain  actions  are  judged 
differently  by  law  according  to  the  intention 
behind  them  :  wilful  homicide  is  legally  very 
different  from  manslaughter,  and  the  burning 
down  of  a  house  through  negligence  does  not 
involve  the  same  consequences  to  the  person 
responsible  for  it  as  premeditated  arson. 
Thus  we  perceive  that  legal  doctrine  con- 
siders conduct  as  the  product  of  a  reasonable 
will,  or  rather  of  a  will  guided  by  normal 
reason.  The  interference  of  the  law  may  be 
called  for,  however,  not  merely  after  the 
event,  when  a  misfortune  has  happened  : 
preventive  measures  are  also  contemplated 
by  law ;  insane  people  are  not  only  put  under 
supervision  and  restraint  in  order  that  they 
may  not  do  damage  to  their  neighbours,  but 


LEGAL   RULES  57 

they  are  provided  with  curators  in  order  that 
they  shall  not  squander  their  fortune  or  employ 
it  in  an  unreasonable  way.  The  further 
development  of  these  views  belongs  to  the 
doctrines  of  responsibility,  liability,  civil 
capacity,  etc.  :  I  merely  wish  for  the  present 
to  show  that  the  will  and  the  mind  are  not 
left  outside  the  consideration  of  law,  but  that 
its  rules  take  them  into  account  for  the  sake 
of  estimating  conduct  and  only  in  so  far  as 
they  influence  conduct. 

The  above  simple  illustrations  afford  a  clue 
which  will  be  found  useful  in  another  set  of 
cases,  namely,  those  in  which  legal  rules  aim 
at  giving  effect  to  the  intention  of  the  in- 
dividual. Apart  from  the  question  of  rights 
and  duties  created  by  an  obligation,  it  is 
necessary  in  modern  law  that  the  obligation 
should  be  a  matter  of  consent,  that  is,  of  free- 
will. Intimidation,  corruption,  fraud,  in  some 
cases  mistake  as  to  facts,  will  invalidate  a 
formally  complete  obligation.  In  the  same 
way  important  inquiries  as  to  freedom  of 
resolve  and  soundness  of  mind  arise  in  caees 
of  testamentary  dispositions.  In  every  way 
human  conduct  is  estimated  in  connection 
with  the  will  expressed  in  it,  though  it  is 
the  conduct  and  not  the  inner  consciousness 


58  C031M0N-SENSE   IN   LAW 

of  man  that  the  law  takes  as  its  starting- 
point. 

6.  To  sum  lip :  we  have  seen  that  legal 
niles  contain  declarations  as  to  right  and 
wrong  conduct,  formulated  in  accordance 
with  the  will  of  a  society  and  intended  to 
direct  the  wills  of  its  members.  Such  declara- 
tions will  be  supported  by  all  means  at  the 
disposal  of  the  society  which  has  laid  them 
down,  ranging  from  physical  coercion  to 
nullification  and  exclusion.  This  being  so, 
law  is  clearly  distinguishable  from  morality. 
The  object  of  law  is  the  submission  of  the 
individual  to  the  will  of  organized  society, 
while  the  tendency  of  morality  is  to  subject 
the  individual  to  the  dictates  of  his  own 
conscience.  The  result  has  to  be  achieved 
in  the  former  case  by  a  combination  of  wills, 
co-ordinating  them  with  each  other.  At  the 
same  time  it  is  clear  that  in  every  healthy 
society  laws  regulating  the  attribution  of 
power  ought  to  be  in  harmony  with  recog- 
nized moral  precepts :  and  substantial  dis- 
crepancies in  this  respect  are  sure  to  produce 
mischief  in  the  shape  of  divided  opinions  and 
uncertainty  of  conduct. 

Within  the  aggregate  produced  by  this 
combination   of   wills    each    component   will 


LEGAL   RULES  59 

must    have   its    range    of    play    and    power. 
Therefore  law  may  be  defined  as  a  set  of  rules 
imposed  and  enforced  by  a  society  with  regard 
to  the  attribution  and  exercise   of  power  over 
persons  and  things.    A  certain  hierarchy  of  wills 
has  to   be  established  :   taking  the  simplest 
case,  one  person  obtains  power  over  another 
in  the  sense  that  he  can  direct  the  will  of  the 
other  and  make  it  serve  his  own  ends,  or  a 
common    end.     Such    ends    may   be    exceed- 
ingly   various,   comprising,  for    instance,  the 
use  of  land  or  goods,   services,   profits,   etc. 
The  common  feature,  however,  in  all  these 
cases  would  be  the  power  of  a  certain  will  to 
bind  others.     The  proposed  definition  of  law 
seems  to  fit  the  different  historical  stages  of 
development.     It  covers  the  case  of  primitive 
legal  rules  which  had  to  be  largely  enforced  by 
self-help,  as  well  as  that  of  the  highly  complex 
commonwealths    of   the    present    day    which 
strive  to  provide  complete  systems  of  legal 
remedies   and  State  sanctions.     It  embraces 
the  working  of  by-laws,  customs  and  autono- 
mous   ordinances,    as    well    as    that    of    the 
common  law  and  of  elaborate  parliamentary 
enactments.     It  makes  room  for  the  binding 
force  of  Constitutional  and  of  International 
Law.     It  takes  account  of  criminal   and  of 


60  COMMON-SENSE   IN   LAW 

private  law,  of  punishment  and  of  nullit)^ 
Its  principal  title  to  recognition  consists  in 
the  fact  that  it  lays  stress  on  the  purpose 
of  law  rather  than  on  the  means  by  which 
law  is  enforced. 


CHAPTER   III 

LEGAL   RIGHTS    AND    DUTIES 

1.  We  have  already  noticed  the  highly 
significant  fact  that  in  most  European  lan- 
guages the  term  for  law  is  identical  with  the 
term  for  right.  The  Latin  jus,  the  German 
Recht,  the  Italian  diritto,  the  Spanish  derecho, 
the  Slavonic  pravo  point  both  to  the  legal 
rule  which  binds  a  person  and  the  legal  right 
which  every  person  claims  as  his  own.  Such 
coincidences  cannot  be  treated  as  mere  chance, 
or  as  a  perversion  of  language  likely  to  obscure 
the  real  meaning  of  words.  On  the  contrary, 
they  point  to  a  profound  connection  between 
the  two  ideas  implied,  and  it  is  not  difficult 
to  see  why  expressions  like  jus  and  Recht  face 
both  ways  :  it  may  be  said  that  on  the  one 
hand  all  private  rights  are  derived  from  legal 
order,  while,  on  the  other  hand,  legal  order 
is  in  a  sense  the  aggregate  of  all  the  rights 
co-ordinated  by  it.  We  can  hardly  define  a 
right   better  than   by  saying  that   it   is  the 

61 


C)2  COMMON-SENSE   IN   LAW 

range  of  action  assigned  to  a  particular  will  within 
the  social  order  established  by  latv.  Just  because 
every  person  under  the  rule  of  law  divests 
himself  of  an  unlimited  liberty  of  action,  a 
certain  liberty  of  action  limited  in  extent 
and  direction  is  conceded  and  guaranteed  to 
him  by  right.  A  right  thcrcCore  supposes  a 
potential  exercise  of  power  in  regard  to  things 
or  persons.  It  enables  the  subject  endowed 
with  it  to  bring,  with  the  approval  of  organized 
society,  certain  things  or  persons  within  the 
sphere  of  action  of  his  will.  When  a  man 
claims  something  as  his  right,  he  claims  it  as 
his  own  or  as  due  to  him.  Naturally  enough, 
his  first  claims  concern  his  own  life  and  limbs, 
and  the  Commonwealth  concedes  the  claim 
by  pledging  itself  to  protect  his  person.  It 
has  not  always  been  so  :  in  ancient  times,  the 
claim  led  only  to  a  declaration  of  right  on 
the  part  of  a  tribal  society,  while  for  actual 
protection  a  freeman  had  to  look  to  his  own 
strength  and  to  that  of  his  kinsmen  or  fellows. 
Next  comes  the  claim  to  personal  freedom 
from  arbitrary  imprisonment  or  interference 
with  one's  movements.  Closely  connected 
with  this  is  the  right  to  be  protected  from 
unauthorized  intrusion  into  one's  home.  It 
is  well  known  what  historical  struggles  have 


LEGAL   RIGHTS   AND   DUTIES     63 

been  produced  by  these  elementary  claims, 
and  how  imperfectly  they  are  realized  even 
nowadays  in  some  communities  which  deem 
themselves  civilized.  Rights  to  free  thought, 
free  conscience,  free  belief  and  free  speech 
are  asserted  on  the  same  ground  of  personal 
freedom,  though  they  are  often  counteracted 
by  considerations  of  public  safety  and  public 
morality.  And  besides  the  protection  of 
material  existence,  in  more  or  less  advanced 
communities  men  claim  as  by  right  protection 
of  their  reputation  and  honour  :  law  gradually 
displaces  self-help  in  preventing  and  punishing 
insult  and  slander. 

"While  this  first  group  of  rights  clusters 
round  the  idea  of  'personality,  a  second  group 
is  formed  round  the  idea  of  property.  We 
consider  as  our  own  not  only  our  body,  our 
home  and  our  honour,  but  also  the  proceeds 
of  conquest  and  labour  (including  mental 
work,  e.g.  of  authors,  inventors,  artists,  etc.). 
It  rests  with  the  State  to  determine  the  rules 
as  to  the  accumulation,  disposal  and  protec- 
tion of  property.  One  of  the  most  important 
developments  of  the  right  to  property  con- 
sists in  the  transfer  of  this  right  to  successors. 

No  human  being  stands  entirely  isolated  in 
this  world ;  every  one  is  more  or  less  affected 


€4  COMMON-SENSE   IN   LAW 

by  the  ties  of  the  family  and  of  the  State, 
and  perhaps  of  many  intermediate  organiza- 
tions. The  exercise  of  the  will  in  these 
relations  leads  to  various  rights  of  authority 
and  corresponding  duties.  It  is  obvious  that 
the  rights  of  a  father,  of  a  husband,  of  a 
guardian,  and  also  their  duties  in  regard  to 
children,  wives,  wards,  etc.,  arise  from  this 
source.  The  status  of  the  citizen,  denizen, 
eivil  officer,  soldier,  foreigner,  also  give  rise 
to  rights  and  duties  of  a  personal  character. 

A  fourth  group  is  formed  by  the  rights 
derived  from  obligations  based  on  agreements 
between  persons  possessed  of  the  capacity  to 
enter  into  such  agreements ;  a  fifth  by  rights 
arising  out  of  wrongs  committed  by  other 
persons,  for  instance,  rights  to  compensation 
for  damage  inflicted  by  trespassers,  etc.  And 
lastly  there  appears  the  complex  system  of 
rights  exercised  by  the  State  and  its  officers 
in  their  public  capacity,  the  rights  giving 
power  to  judges,  magistrates,  administrative 
officers,  commanders,  and  embracing  both 
their  executive  functions  and  their  jurisdiction 
in  criminal  and  civil  cases. 

The  above  enumeration  is  intended  merely 
to  give  a  general  view  of  the  powers  claimed 
under  the  sway  of  legal  rules  by  the  members 


LEGAL   RIGHTS   AND   DUTIES      65 

of  the  Commonwealth  in  their  divers  capacity 
and  combinations. 

2.  Let  us  now  pass  to  a  closer  analysis  of 
the  notion  of  legal  right  and  of  its  counter- 
part, legal  duty.  The  best  way  to  realize 
the  nature  of  rights  is  to  observe  their  exercise 
in  social  intercourse.  Legal  intercourse  runs 
parallel  to  social  intercourse  :  one  cannot  be 
thought  of  without  the  other.  In  social 
intercourse  most  varied  relations  are  created 
and  dissolved  every  moment ;  men  love  and 
hate,  help  and  hinder,  educate  and  exploit 
each  other,  join  in  conversation,  in  business, 
in  literary  and  scientific  work.  But  in  the 
legal  forms  of  this  intercourse,  relations  assume 
always  one  aspect ;  they  are  varieties  of  the 
fundamental  correspondence  between  right 
and  duty  which  constitutes  legal  power. 
Men  either  claim  or  ozve  in  their  legal  relations. 
For  example,  A  exerts  a  right,  that  is,  A 
legally  has  the  power  to  require  from  B,  or 
from  B,  C,  D,  etc.,  that  he  or  they  shall  act 
or  forbear  to  act  in  a  certain  way.  If  A  is 
entitled  to  assert  such  a  right,  B,  C,  D,  etc., 
or  any  one  of  them,  is  bound  to  discharge 
certain  duties — to  do  something,  or  to  abstain 
from  doing  something.  To  give  one  or  two 
concrete  instances  :  A,  being  the  master,  has 


66  COMMON-SENSE     IN   LAW 

a  right  over  B,  the  servant,  in  regard  to  X, 
certain  services.  The  relation  may  be  ex- 
pressed in  a  typical  formula.  A  (subject) 
requires  (predicate)  certain  services  from  B 
(object).  Or,  if  we  turn  the  sentence  from 
the  active  to  the  passive,  B  (subject  of  duty) 
owes  (predicate)  certain  services  to  A  (object). 
In  legal  relations  of  this  kind  A  and  B  are 
both  subjects  :  one  of  a  right,  the  other  of 
a  duty,  which  may  be  construed  as  the  passive 
side  of  a  right.  The  predicate  in  active 
sentences  is  "  requires  "  :  in  passive  sentences 
"  owes,  is  bound  to."  Lastly,  the  service 
required  appears  as  the  material  contents  of 
the  right  and  of  the  duty ;  grammatically  and 
juridically  they  are  the  object  of  the  pre- 
dicate, providing  it  with  a  concrete  sub- 
stratum. There  can  be  no  empty  rights  and 
no  indefinite  duties.  Still,  it  is  to  be  noticed 
that  according  to  our  analysis  the  introduction 
of  the  thing  required  is  merely  a  means  to 
provide  the  relations  between  A  and  B  with 
some  material  :  it  does  not  create  a  relation 
between  A  and  X  (service)  or  between  B 
and  X;  the  legal  relation  exists  exclusively 
between  A  and  B. 

A    similar    relation    is    expressed    in    the 
sentence  :   "  B,  the  servant,  requires   A,  the 


LEGAL   RIGHTS   AND   DUTIES       6T 

master,  to  pay  his  wages."  When  inverted 
the  relation  would  be  expressed  by  the- 
sentence  :  "  A  (the  master),  owes  wages  to  B 
(the  servant)." 

A  different  type  is  presented  by  a  sentence 
like  this  :  A  (the  landowner),  requires  B^ 
C,  D,  etc. — every  one — to  abstain  from  inter- 
ference with  a  piece  of  land  (Y).  Here  the 
subject  of  the  duty  is  not  one  determinate 
person,  but  any  person  likely  to  interfere 
with  A's  right.  A  is  sometimes  said  to 
exercise  his  right  "against  all  the  world"; 
as  it  is  expressed  in  Roman  legal  terminology, 
A  has  a  "  right  over  the  thing  "  {jus  in  rem).. 
This  way  of  treating  the  relation  is  quite- 
acceptable  from  one  point  of  view,  but  it  is 
not  the  only  possible  nor  the  necessary  one.. 
The  case  lends  itself  quite  as  well  to  the^ 
construction  already  adopted  by  us.  The 
right  of  A  in  regard  to  an  estate  of  land  may 
be  conveniently  analysed  as  a  legal  relation 
between  A  and  B,  C,  D  and  an  indefinite 
number  of  other  persons,  who  are  excluded 
by  the  exercise  of  A's  right  from  interfering 
with  the  estate.  Their  duty  is  one  of  ab- 
stention ;  A's  right  is  one  of  prohibition,  which 
makes  him  exclusive  owner  and  enables  him 
to  use  the  estate  as  he  chooses.     The  advantage 


68  COMMON-SENSE   IN   LAW 

of  such  a  construction  of  the  right  is  that  it 
enables  us  to  treat  it  from  the  point  of  view 
of  the  personal  relations  between  the  members 
of  a  society,  which  are  at  bottom  the  only 
relations  the  law  can  regulate.  The  notion 
of  property  or  exclusive  ownership  which  we 
have  to  fit  into  the  legal  frame  in  the  case 
under  discussion  is,  after  all,  a  notion  entirely 
produced  by  the  regulation  of  intercourse 
between  citizens.  It  is  not  a  natural  function 
in  itself,  like  tilling  or  depasturing  soil  or 
building  on  land.  Therefore  the  right  of 
ownership  is,  strictly  speaking,  quite  as  much 
a  personal  right — the  right  of  one  person 
against  other  persons — as  a  right  to  service, 
or  a  lease.  It  may  be  convenient  for  certain 
purposes  to  speak  of  rights  over  things,  but 
in  reality  there  can  be  only  rights  in  respect 
of  things  against  persons,  in  the  same  way 
as  there  are  rights  in  respect  of  the  use  of 
one's  labour  or  in  respect  of  the  use  of  some- 
body else's  labour.  Relations  and  intercourse 
arise  exclusively  between  live  beings;  but 
goods  as  well  as  ideas  are  the  object  and  the 
material  of  such  relations;  and  when  a  right 
of  ownership  in  a  watch  or  a  piece  of  land  is 
granted  to  me  by  law,  this  means  not  only 
that  the  seller  has   entered  into  a  personal 


LEGAL   RIGHTS   AND   DUTIES     69 

obligation  to  deliver  those  things  to  me,  but 
also  that  every  other  person  will  be  bound 
to  recognize  them  as  mine — an  artificial  notion 
created  and  insisted  upon  for  the  sake  of  legal 
intercourse. 

It  is  also  to  be  noticed  as  a  peculiarity  of 
the  second  type  of  juridical  relations  that  the 
subject  of  right  cannot  be  converted  into  a 
subject  of  duty  and  vice  versa,  as  in  the  first 
type.  But  the  right  conceded  to  the  indi- 
vidual in  this  case  is  matched  by  similar  rights 
vested  in  other  members  of  the  community. 
If  A  excludes  B,  C  and  D  from  his  property, 
B  has  the  same  power  of  exclusion  in  regard 
to  A,  C  and  D,  C  in  regard  to  A,  B  and  D, 
etc. 

A  third  type  of  juridical  relation  is  con- 
stituted by  the  rights  of  the  Commonwealth 
itself  as  expressed  in  its  legal  rules.  The 
Commonwealth,  A,  is  the  subject  of  the  right 
in  this  relation ;  it  requires  (predicate)  the 
obedience  of  citizens  to  its  laws  (object) ;  this 
obedience  provides  the  conception  of  duty 
with  material  contents,  and  therefore  forms 
the  object  of  right.  If  the  relation  is  de- 
scribed from  the  point  of  view  of  duty,  the 
citizens  would  evidently  appear  as  subjects 
of  the  duty,  with  corresponding  changes  in 


70  COMMON-SENSE   IN   LAW 

predicate  and  object.  The  inverted  or  passive 
statement  of  the  relation  would  be,  the  citizens 
(B)  owe  obedience  to  the  Commonwealth  in 
respect  of  its  laws. 

Thus  the  aggregate  of  legal  rules  imposed 
by  a  state  or  other  society  appears  as  the 
material  complement  or  object  of  the  society's 
right  to  the  obedience  of  its  members.  Every 
single  legal  rule  may  be  thought  of  as  one  of 
the  bulwarks  or  boundaries  erected  by  society 
in  order  that  its  members  shall  not  collide 
with  each  other  in  their  actions.  Not  to 
speak  of  such  fundamental  guarantees  as  the 
commandments  "  Thou  shalt  not  kill,"  "  Thou 
shalt  not  steal,"  "  Thou  shalt  not  commit 
adultery,"  every  legal  rule  appears  as  a 
necessary  adjunct  to  some  relation  of  social 
intercourse,  and  it  is  often  difficult  to  say 
whether  the  rule  precedes  the  rights  and 
duties  involved  in  the  relation,  or  vice  versa. 
From  the  historical  point  of  view,  the  latter 
alternative  seems  the  more  probable.  When 
merchants  land  on  a  coast  inhabited  by  a 
savage  tribe  and  barter  beads  for  ivory, 
customs  of  exchange  develop  before  there  is 
any  authority  capable  of  framing  rules  as  to 
the  contract  of  barter.  Dying  persons  must 
have  often  disposed  of  their  goods  on  their 


LEGAL   RIGHTS   AND   DUTIES     71 

death-bed  before  the  law  of  testamentary 
succession  took  shape.  But  we  are  not 
engaged  now  in  tracing  historical  sequences 
in  the  development  of  rights  and  rules.  It 
may  suffice  to  notice  that  both  these  sides  of 
law  stand  in  constant  cross -relations  one  to 
another.  In  a  full  survey  of  the  matter, 
equal  stress  ought  to  be  laid  on  rights  and 
duties  :  but  in  practice,  rights  are  chiefly 
insisted  upon  in  private  law,  duties  in  public 
law. 

3.  The  subjects  of  rights  and  duties  in 
modern  law  are  necessarily  persons,  that  is, 
living  human  beings.  As  soon  as  such  a 
being  is  conceived  the  law  recognizes  its 
personality  and  assigns  certain  rights  to  it. 
Even  the  embryo  in  its  mother's  womb  is 
protected  in  its  existence  :  to  destroy  it  is  a 
criminal  offence;  certain  rights  of  property 
may  be  affected  by  its  existence,  e.g.  if  the 
father  be  deceased  intestate,  the  succession 
may  be  regarded  as  destined  for  it  when 
it  comes  to  life  :  and  if  it  comes  to  life  only 
for  a  moment,  the  further  course  of  intestate 
succession  will  depend  on  that  fact,  though 
the  sole  indication  of  actual  life  has  been  a 
faint  cry  or  a  momentary  palpitation  of  the 
heart.     In  such  a  case  it  is  by  legal  process 


72  COMMON-SENSE   IN   LAW 

that  personality  is  recognized  and  endowed 
with  rights,  and  the  intention  of  the  law  is 
clear  :  it  wishes  to  make  sure  that  the  possi- 
bilities offered  by  nature  to  a  living  being 
shal  be  protected  to  the  utmost  against 
accident  and  foul  play.  On  the  other  hand 
law  takes  good  care  that  the  rights  with 
which  it  endows  such  embryonic  beings  shall 
remain  latent  or  shall  be  exercised  only  by 
proxy  until  personality  attains  maturity  of 
free  will.  Hence  the  well-known  restrictions 
placed  upon  persons  under  age — wardship, 
etc.  Even  persons  over  age  are  not  always 
considered  as  possessed  of  full  powers  in  the 
exercise  of  their  rights.  Custody  of  the 
madman  and  the  spendthrift  was  not  un- 
known even  to  ancient  law.  These  facts 
have  afforded  material  for  a  theory  to  which 
I  have  already  referred,  namely,  that  the 
object  of  law  is  the  protection  of  interests 
(Ihering).  It  is  urged  that  it  is  the  interests 
and  not  the  will  of  the  infant  or  of  the  feeble- 
minded which  are  taken  care  of.  But  a 
little  reflection  shows  that  law  does  not  deal 
indiscriminately  with  all  sorts  of  wills  and 
minds,  but  with  the  normal  will  and  mind  of 
the  average  person.  When,  for  some  reason 
such  as  disease  or  old  age,  the  average  is  not 


LEGAL   RIGHTS   AND   DUTIES     78 

reached,  the  law  provides  substitutes  and 
supports,  but  certainly  does  not  destroy  the 
cardinal  qualification  of  free  will.  On  the 
contrary,  it  sets  up  reasonable  standards  to 
which  free  wills  have  to  conform.  In  any 
case,  the  notion  of  free  personality  must  be 
regarded  as  a  most  important  element  in  the 
construction  of  rights  :  for  on  it  depend  the 
relations  between  subjects  and  predicates  in 
the  legal  sense. 

4.  A  subject  of  right  must  be  a  living 
person,  but  need  not  be  one  person.  A 
plurality  of  persons  may  act  as  a  subject  of 
right  as  well  as  a  single  individual.  It  is  not 
unusual  for  a  house  to  be  owned  by  several 
co-heirs.  The  occupants  of  houses  surround- 
ing a  square  may  enjoy  the  right  of  walking 
in  the  square  in  the  same  way  as  every  one 
of  them  enjoys  the  right  of  walking  in  his 
own  garden. 

Here  personality  is  ascribed  to  a  plurality 
of  unconnected  individuals;  but  it  may  also 
be  ascribed  to  a  definitely  constituted  associa- 
tion of  individuals ;  thus  in  the  last  example, 
the  right  to  use  the  square  may  depend  on 
the  fact  that  certain  householders  are  members 
of  an  association  for  keeping  up  that  particular 
square,  and  their  rights  and  duties  belong  to 


74  COMMON-SENSE   IN   LAW 

them  only  in  so  far  as  they  take  part  in  this 
association.  Persons  forming  an  association 
of  this  kind  may  either  act  jointly  or  in 
common,  that  is,  they  may  appear  as  partners 
with  strictly  defined  shares,  or  else  as  par- 
ticipants ^vith  undetermined  rights;  a  com- 
mercial firm  may  serve  as  an  instance  of  the 
first  kind,  a  club  whose  members  have  the 
use  of  certain  furnished  premises  of  the  other. 
In  many  cases,  however,  the  collective  per- 
sonality created  by  the  association  of  a  number 
of  individuals  for  a  certain  purpose  consists 
in  a  more  or  less  complicated  partnership, 
that  is  to  say,  a  contractual  relation  which 
results  in  a  certain  unity  of  action  as  regards 
outsiders;  but  when  looked  at  from  the 
inside,  the  association  consists  of  a  number 
of  independent  persons  who  have  agreed  to 
act  together. 

But  we  have  also  to  reckon  in  law  with  the 
existence  of  bodies  or  unions  which  develop 
a  distinct  personality  of  their  own,  not  a 
combination  formed  out  of  the  individual 
personalities  of  partners,  and  not  dissolved  by 
the  secession  of  individual  members.  We 
cannot  plunge  into  the  intricate  details  of 
doctrines  as  to  corporations  and  associations  : 
what  I  wish  to  show  is  the  effect  of  the  legal 


LEGAL   RIGHTS   AND   DUTIES     75 

recognition  of  personality  in  aggregate  bodies 
which,  though  composed  of  individuals,  are 
considered  as  being  one  and  undivided  in  them- 
selves. Organic  unity  is  often  supplied  to  such 
corporations  by  a  grant  from  the  State  :  but 
in  such  cases  the  Commo  wealth  generally 
confirms  and  recognizes  what  has  been  already 
prepared  by  social  intercourse.  For  example, 
historical  corporations  like  towns  or  churches 
do  not  depend  for  their  formation  on  express 
agreement  or  grant,  but  on  a  constant  aim 
or  purpose,  such  as  the  organization  of 
municipal  life  or  spiritual  exercises  in  a 
certain  place. 

The  existence  of  corporations  gives  rise  to 
an  interesting  juridical  problem.  We  began 
the  discussion  as  to  subjects  of  right  by  saying 
that  they  must  be  live  human  beings.  How 
will  this  apply  to  such  bodies  as  the  City  of 
Oxford,  or  Corpus  Christi  College  ?  In  some 
respects  they  act  like  individuals  :  they  hold 
property,  contract  loans,  pay  salaries,  take 
care  of  buildings,  carry  on  certain  definite 
work,  such  as  the  sanitation  of  the  town,  or 
the  teaching  of  undergraduates ;  nor  can  they 
be  dissolved  at  pleasure  by  their  members. 

It  clearly  would  not  do  to  consider  the 
existence  of   a  corporation  like  the   City  of 


76  COMMON-SENSE   IN   LAW 

Oxford  as  a  contractual  association  of  its 
inhabitants.  But  it  would  not  do  either  in 
the  case  of  a  corporation  like  a  college.  It 
would  be  absurd  to  resolve  the  life  of  Corpus 
Christi  College  into  the  constituent  elements 
of  the  lives  of  the  President  and  the  Fellows 
of  each  particular  year,  or  month,  or  week. 
Tlie  really  important  point  evidently  is 
that  the  institution  remains  one  and  dis- 
tinct in  spite  of  the  constant  change  of 
individuals  who  from  time  to  time  act  as 
its  members.  We  are  met  by  the  fact  that 
a  social  organization  of  this  kind,  although 
necessarily  embodied  in  certain  individual 
persons  for  the  time  being,  yet  leads  a  life 
of  its  own,  as  a  higher  being  provided  with 
its  own  will,  its  own  aims  and  an  appropriate 
organization  to  exercise  the  will  and  achieve 
the  aims.  What  has  been  said  of  corporations 
like  a  city  or  a  college  is  also  true  of  organic 
bodies  like  a  commonwealth  or  a  church, 
which  are  formed  not  by  express  agreement, 
but  by  the  force  of  circumstances.  A  variety 
modelled  on  the  pattern  of  such  organic  cor- 
porations is  presented  by  corporate  bodies 
which  have  been  created  by  an  express  grant 
of  the  State.  Tlie  numerous  chartered  com- 
panies of  English  Law  belong  to  this  species. 


LEGAL   RIGHTS   AND   DUTIES     77 

The  characteristic  trait  of  these  organic 
societies  is  thus  their  double  Hf  e,  the  combined 
existence  of  the  juridical  organization  and  of 
the  members  filling  its  frame  at  each  particular 
moment.  The  existence  of  a  distinct  per- 
sonality may  be  illustrated  by  a  kind  of 
conundrum.  If  there  are  a  hundred  people 
assembled  in  a  room  to  work  out  a  decree 
of  the  University  of  Oxford,  how  many 
persons  are  there  in  the  room  ?  Not  a 
hundred,  certainly,  but  a  hundred  and  one  : 
because,  besides  the  individuals,  there  is  the 
corporate  personality  whose  will  has  to  be 
expressed.  Is  the  existence  of  such  more 
than  human  organizations  a  mere  legal 
fiction,  contrived  for  the  purpose  of  linking 
certain  persons  together  and  introducing  a 
principle  of  continuity  into  their  acts  and 
dealings  ?  jMany  jurists  have  thought  so,  and 
the  theory  has  led  to  most  important  con- 
clusions in  practice,  for  example,  the  doctrine 
that  a  corporation  cannot  commit  tortious  acts. 
This  legal  doctrine  has  been  widely  held  by 
Continental  authorities,  and  appears  also  in 
English  cases.  Thus  in  Abrath  v.  North  Eastern 
Railway  Co.  (188G),  Lord  Bramwell  said  : 

"  I  am  of   opinion  that  no  action  for  a 


78  COMMON-SENSE   IN    LAW 

malicious  prosecution  will  lie  against  a  cor- 
poration. ...  To  maintain  an  action  for 
malicious  prosecution  it  must  be  shown  that 
there  was  an  absence  of  reasonable  and 
probable  cause,  and  that  there  was  malice 
or  some  indirect  and  illegitimate  motive  in 
the  prosecutor.  A  corporation  is  incapable 
of  malice  or  of  motive.  If  the  whole  body 
of  shareholders  were  to  meet  and  in  so  many- 
words  to  say,  '  prosecute  A  not  because  we 
believe  him  guilty,  but  because  it  will  be  for 
our  interest  to  do  it,'  no  action  would  lie 
against  the  corporation,  though  it  would  lie 
against  the  shareholders." 

But  judges  who  had  to  decide  similar  cases 
later  on  were  driven  to  abandon  Lord  Bram- 
well's  doctrine,  and  this  for  good  reasons. 
In  a  1904  case,  Citizen's  Life  Assurance 
Company  v.  Brown,  proceedings  arose  out  of 
a  libel  contained  in  a  circular  addressed  by 
the  agent  of  a  rival  company  to  several 
persons  assured  in  the  appellant  Company. 
Lord  Lindley  on  appeal  remarked  : 

"  The  question  raised  by  this  appeal  is 
whether  a  limited  Company  is  responsible 
for  a  libel  published  by  one  of  its  officers. 
.  .  ."     [The    facts    showed    (shortly)  that 


LEGAL   RIGHTS   AND   DUTIES     7^ 

Fitzpatrick,  in  reply  to  the  action  of 
Brown,  who  had  endeavoured  to  induce 
policy-holders  in  the  Citizen's  Life  Assur- 
ance Company  to  join  another  in  which 
he  was  interested,  sent  out  a  circular  letter 
to  these  persons  which  was  plainly  de- 
famatory ;  it  contained  statements  which 
Fitzpatrick  knew  not  to  be  true.  There  was 
evidence  of  express  malice  on  the  part  of 
Fitzpatrick.  It  was  contended  that  the 
malice  with  which  he  wrote  could  not  be 
imputed  to  the  Company]. 

"If  it  is  once  granted  that  corporations 
are  for  civil  purposes  to  be  regarded  as 
persons,  i.e.  as  principals  acting  by  agents 
and  servants,  it  is  difficult  to  see  why  the 
ordinary  doctrines  of  agency,  and  of  master 
and  servant,  are  not  to  be  applied  to  cor- 
porations as  well  as  to  ordinary  individuals^ 

"  These  doctrines  have  been  so  applied  in 
a  great  variety  of  cases,  in  questions  arising^ 
out  of  contracts,  and  in  questions  arising  out 
of  torts  and  frauds ;  and  to  apply  them  to 
one  class  of  libels  and  to  deny  their  applica- 
tion to  another  class  of  libels  on  the  ground 
that  malice  cannot  be  imputed  to  a  body 
corporate  appears  to  their  lordships  to  be 
contrary  to  sound  legal  principles." 


80  COMMON-SENSE   IN   LAW 

In  keeping  witli  this  view,  Mr.  Justice 
Darling,  in  Cornjord  v.  Carlton  Bank  (1900) 
remarked  : 

"  I  am  satisfied  the  prosecution  was  with- 
out reasonable  and  probable  cause,  and  that 
the  defendants  were  acting  with  malice,  in 
the  sense  that  the}'  were  actuated  by  such 
motives  as  would  be  malice  in  law,  were 
they  the  motives  of  a  private  person." 

This  means  that  in  modern  English  law 
the  "  personal  "  existence  of  a  corporation  is 
regarded  not  as  a  fiction,  but  as  a  reality. 
Thus  a  body  corporate  has  been  held  to  be  a 
"  respectable  and  responsible  person  "  within 
the  meaning  of  the  usual  proviso  in  a  lease 
limiting  a  lessor's  right  to  object  to  an  assign- 
ment by  the  lessee  [Willmott  v.  London  Road 
Car  Co.  (1910)].  Though  composed  of  many 
individuals,  a  "  corporation  aggregate  "  is 
deemed  to  be  a  distinct  person  by  itself 
animated  by  the  purpose  which  it  pursues 
and  embodies  in  the  organization  which  has 
been  framed  for  it. 

Besides  corporations  expressly  acknowledged 
by  law,  there  is  a  considerable  number  of  social 
formations  which,  as  it  were,  hover  on  the 
borderland  of  corporate  existence  and  present 


LEGAL   RIGHTS   AND   DUTIES      81 

some  difficulties  to  legal  analysis.  Trade 
unions  are  a  conspicuous  instance.  They  hold 
and  administer  property,  they  pursue  a  per- 
manent end  distinct  from  the  business  aims 
of  their  members,  they  are  organized  to 
exercise  influence  both  on  their  own  members 
and  on  outsiders.  Yet  they  are  not  corpora- 
tions, and  refuse  to  be  treated  as  such  :  and 
hence  the  problem  of  liability  discussed  in 
regard  to  corporations  has  arisen  with  peculiar 
force  in  connection  with  the  activity  of  trade 
unions. 

It  is  well  known  that  recent  legislation  on 
the  subject  of  trade  disputes  (Act  1906)  was 
partly  prompted  by  a  desire  to  amend  the 
state  of  the  law  as  declared  in  the  famous 
Taff  Vale  case.^  A  Railway  Company  sought 
an  injunction  against  the  Amalgamated 
Society  of  Railway  Servants,  agents  and 
members  of  w^hich,  it  was  complained,  had 
been  picketing  and  besetting  workmen  who 
were  likely  to  be  employed  by  the  Railway. 
It  is  needless  for  us  to  examine  the  facts  of 
the  case,  but  we  have  to  remember  that  the 
highest  legal  authority  of  the  kingdom,  the 
House  of  Lords,  came  to  the  conclusion  that 

^  Ta§  Vale  Railway  v.  Amalgamated  Society  of  Railtoay 
Servants  {\m\). 
F 


82  COMMON-SENSE   IN   LAW 

if  tortious  acts  had  been  committed,  the 
responsibihty  for  them  would  fall  on  the 
Trade  Union  itself. 

This  view  is  in  accord  with  what  has  been 
said  before  on  the  status  of  corporations,  but 
Parliament  in  1906  altered  the  law  to  the 
effect  that  Trade  Unions  were  not  to  be  held 
liable  in  such  cases.  This  implies  that  in  view 
of  their  special  aims  unions  of  this  kind  are 
given  a  privileged  position  in  trade  disputes  :  ^ 
for  otherwise  their  action  in  the  defence  of 
labour  would  be  hampered.  These  are  quasi- 
corporations. 

Another  species  of  artificial  persons  arises 
when  certain  aggregates  of  rights  have  been 
instituted  for  a  definite  purpose  but  not 
attributed  to  any  definite  subject  of  right. 
Charities  are  in  this  position.  If  money  has 
been  left  to  provide  for  the  education  of  poor 
children,  or  for  the  maintenance  of  a  ward  at 
a  hospital,  English  law  furnishes  the  machinery 
of  administration  by  the  institution  of  trustees, 
who  act  as  subjects  of  the  right,  although  they 
are  responsible  to  the  Commonwealth  for  the 
exercise  of  this  right  in  the  manner  provided 
by  the  benefactor  or  testator.  In  Continental 
law  the  case  is  somewhat  more  complicated : 
1  See  below,  pp.  97,  126. 


LEGAL   RIGHTS   AND   DUTIES     83 

the  charity  is  treated  as  a  kind  of  union  lor 
a  definite  purpose,  although  the  elements  of 
association  are  wanting.  Here  the  adminis- 
trators of  the  charity  are  the  subjects  of  the 
right  :  but  the  exercise  of  right  is  strictly 
determined  by  the  document  of  foundation, 
and  the  administrators  embody  the  will  of 
the  juridical  unit  as  far  as  it  is  free  to  act  in 
accordance  with  the  provisions  of  this  docu- 
ment. Limitations  do  not  affect  in  any  way 
the  fundamental  character  of  the  right.  Con- 
tinental jurists  have  felt  some  difficulties  as 
to  the  position  of  the  persons  who  benefit  by 
the  trust  :  but  English  law,  with  its  doctrine 
of  trusts,  makes  this  position  easy  to  under- 
stand; the  sick  or  the  children  whom  the 
charity  helps  for  the  time  being  may  be 
likened  to  the  "  cestui  que  trust  "  for  whose 
sake  the  trustee  administers  the  trust  :  they 
are  beneficiaries  protected  by  the  State,  but 
certainly  not  subjects  of  right. 

When  the  subject  is  not  expressly  defined,, 
when,  for  instance,  a  right  of  way  is  opened 
for  use  to  every  passer-by,  we  have  the  same 
type  of  legal  relation  as  when  every  man  is 
deemed  to  be  the  subject  of  a  duty,  e.g.  every 
man  is  obliged  to  respect  a  right  of  ownership. 
Any  one,  B,  C,  D,  may  in  such  a  case  exercise 


84  COMMON-SENSE   IN   LAW 

the  right  and  assert  the  corresponding  claims, 
as  often  happens  in  regard  to  rights  of  way. 
But  it  is  not  impossible  to  make  the  public 
at  large,  or  the  State  as  its  representative,  the 
subject  of  such  rights. 

5.  The  objects  of  rights  and  duties  may  be 
of  two  kinds,  either  things,  that  is,  material 
bodies  which  persons  seek  to  appropriate  and 
to  use,  as  land,  cattle,  money,  furniture,  etc., 
or  abstract  interests,  that  is,  claims  in  regard 
to  human  forces  and  activities,  e.g.  services, 
contractual  obligations  of  all  kinds,  the  good- 
will of  a  firm,  literary  or  artistic  productions. 
In  a  wider  sense  it  may  be  said  that  material 
things  are  also  not  directly  objects  of  rights 
and  duties,  but  indirectly,  as  far  as  interests 
in  them  are  allowed  or  recognized  by  law. 
Thus  it  is  not  actually  the  house  which  forms 
the  object  of  a  householder's  right,  but  the 
interest  he  has  in  it,  the  ownership  or  the 
possession  of  the  house.  On  the  other  hand, 
it  is  usual  to  class  abstract  interests  as 
incorporeal  things,  just  as  we  classify  under 
the  same  grammatical  head  abstract  nouns 
like  courage,  faith,  science,  and  concrete  nouns 
like  chair,  sword,  tree.  Either  one  or  the 
other  basis  of  classification  may  be  used, 
provided  it  is  followed  consistently.     I  prefer 


LEGAL   RIGHTS   AND   DUTIES     85 

to  speak  of  things  and  abstract  realities  or 
interests,  because  this  terminology  lays  stress 
on  the  fundamental  reason  why  every  legal 
relation  has  to  be  constructed  with  the  help 
not  only  of  subjects  of  rights  and  duties,  but 
also  of  objects.  If  it  is  not  to  be  a  mere 
empty  form,  it  must  be  directed  to  some 
human  interest  as  its  object. 

From  this  point  of  view  the  right  of  an 
individual  over  his  own  personality  is  in 
essence  a  right  directed  towards  an  abstract 
interest.  Every  person  has  a  right  to  his 
life,  to  his  honour  and  good  repute,  to  freedom 
of  action,  of  speech,  of  conscience.  The 
corresponding  duties  lie,  firstly,  on  the  world 
at  large,  that  is,  on  all  members  of  a  society, 
as  well  as  of  other  societies  which  are  at  peace 
with  it;  secondly,  the  subject  of  the  corre- 
sponding duty  may  be  the  society  or  common- 
wealth itself,  in  so  far  as  it  may  be  prevented 
by  public  law  from  curtailing  the  life,  liberty, 
or  reputation  of  its  subjects. 

In  so  far  as  objects  of  rights  may  be  regarded 
as  possessing  marketable  value  they  are  called 
"  property."  Not  every  object  of  right  admits 
of  such  an  estimate;  a  person's  honour  or 
reputation,  for  instance,  cannot  be  appraised 
either  for  consumption  or  for  sale,  although 


86  COMMON-SENSE   IN   LAW 

heavy  damages  may  be  awarded  for  a  wanton 
or  malicious  attack  on  it.  On  the  other  hand 
not  only  concrete  things  like  estates,  houses, 
furniture,  but  also  abstract  interests,  such  as 
the  goodwill  of  a  firm  or  the  copyright  of  a 
novel,  have  a  value  in  the  market  and  therefore 
form  items  of  property  in  the  special  sense  of 
the  word. 

A  term  peculiar  to  English  law  is  chose  in 
action :  it  means  the  right  of  a  person  to 
recover  from  another  by  legal  proceedings  any 
money  or  property.  The  "  thing "  in  this 
case  is  the  material  interest  involved  in  the 
success  of  the  action. 


CHAPTER   IV 

FACTS   AND   ACTS    IN    LAW  j 

1.  A  NETWORK  of  legal  rules  stretches  over 
social  life,  the  events  of  which  are  constantly 
crossed  by  the  lines  of  juridical  rights  and 
obligations  :  most  circumstances  of  any  im- 
portance assume  a  certain  legal  aspect.  Thus 
as  against  the  various  facts  and  acts  of  busi- 
ness, intellectual  intercourse  and  social  re- 
lations, rises  a  series  of  facts-  and  acts-in-law 
on  which  depend  the  changes  and  evolution  of 
rights.  It  is  hardly  necessary  to  point  out 
that  these  juridical  facts  and  acts  do  not 
simply  reflect  their  counterparts  in  ordinary 
life  :  they  have  special  attributes  of  their 
own,  as  the  layman  is  often  made  to  feel. 

Let  us  begin  with  an  examination  of  facts- 
in-law.  The  word  fact  as  opposed  to  law  is 
sometimes  used  by  lawyers  of  circumstances 
which  have  a  bearing  on  the  decision  of  a 
legal  problem.  The  production  and  sifting 
of  evidence  has  to  deal  with  facts  in  this 
sense.     In  so  far  every  minute  peculiarity  of 

87 


88  COMMON-SENSE   IN   LAW 

a  thing,  of  a  person  or  of  a  process  may  prove 
of  value,  e.g.  footprints  or  fingerprints  may 
be  of  the  greatest  importance  in  identifying 
a  criminal.     On  the  other  hand  it  is  clear  that 
a  detective  or  a  counsel  collecting  evidence  to 
establish  guilt   will   do  well  not  to  drag  in 
circumstances  which  have  no  importance  for 
the    prosecution    and    which    would    merely 
confuse  the  problem  in  hand.     Indeed,  the 
judge  may  object  in  the  course  of  an  examina- 
tion of  witnesses  to  irrelevant  questions  and 
to  the  bringing  in  of  unnecessary  material. 
In  this  case,  however,  although  certain  legal 
forms  make  themselves  felt,  the  aim  of  the 
process   is  the   settlement   of    a  question  of 
fact  as  opposed  to  a  question  of  law — has  a 
murder  been  committed  or  not  ?    or  is  it  a 
case  of  manslaughter  ?    or  of  a  brawl  which 
led  to  the  infliction  of  a  fatal  wound  ?    has 
this  particular  man,  the  prisoner,  committed 
the  crime?    did  he  do  it  of  his  own  motion 
or  at  the  instigation  of  another  ?     In  so  far, 
the  examination  turns  on  matters  of  ordinary 
social  experience  :    and  therefore  the  decision 
of  all  such  questions  is  commonly  left  to  a 
jury    composed    of    laymen,  for    whom    the 
questions  at  issue  have  to  be  put  clearly  and 
carefully  by  the  Court,     But   suppose  these 


FACTS   AND   ACTS   IN   LAW        89 

questions  have  been  answered  in  one  way  or 
another  :  suppose  the  jury  has  brought  in 
the  verdict  that  A  was  slain  in  a  quarrel  by 
a  companion  who  was  drunk  at  the  time.  As 
soon  as  this  has  been  established,  we  have 
to  deal  with  facts-in-law.  The  fact  of  acci- 
dental death  in  consequence  of  an  unpre- 
meditated assault,  and  the  fact  that  the 
slayer  was  intoxicated,  lead  to  legal  conse- 
quences :  a  sentence  will  be  pronounced  by 
the  Court,  which  will  formulate  these  conse- 
quences in  the  particular  case  according  to 
certain  legal  rules  provided  with  a  sanction. 
As  far  as  the  judicial  decision  is  concerned, 
the  whole  story  of  the  quarrel,  with  its  minute 
incidents  and  details,  will  have  faded  away^ 
leaving  the  verdict  as  its  one  result.  In  this 
verdict  the  rule  and  rights  set  in  operation 
by  the  Court  will  still  depend  on  facts :  but 
these  will  be  "  facts-in-law,"  the  mere  skele- 
ton, as  it  were,  of  the  event  itself,  from  which 
all  irrelevant  circumstances  have  been  re- 
moved. The  slayer  may  have  been  a  rather 
sympathetic,  though  hot-headed  person,  the 
slain  obnoxious  and  contemptible;  but  these 
features  will  disappear  from  the  fact-in-Iaw 
as  irrelevant  :  for  the  law  cannot  draw  such 
distinctions,    and   the    right    of    a    worthless 


90  COMMON-SENSE   IN   LAW 

person  to  be  protected  in  life  and  limb  is  as 
sacred  as  the  right  of  the  noblest  of  citizens. 
Just  as  the  fact  appears  in  a  kind  of  schematic 
outline,  so  does  the  person  slain  become  a  man 
in  general,  a  man  in  law,  if  one  may  use  the 
expression,  bereft  of  all  attributes  except  the 
one  essential  quality  of  being  possessed  of  a 
full  right  to  have  his  life  protected  by  the 
State.  Again,  intoxication  may  become  an 
important  fact  from  the  point  of  view  of  law. 
It  will  not  be  relevant  to  point  out  that  the 
wine  consumed  was  bad  in  quality  or  that  the 
criminal  was  apt  to  be  irritable  and  violent 
when  drunk.  The  judges,  while  taking  the 
fact  into  consideration  as  an  important  con- 
dition in  the  settlement  of  legal  consequences, 
will  fix  their  attention  strictly  on  one  feature 
of  intoxication — the  one  relevant  feature  from 
the  legal  point  of  view,  that  is,  the  effect  of 
liquor  on  the  mind  of  the  criminal  and  the 
consequent  increase  or  decrease  of  responsi- 
bility. 

To  sum  up,  we  must  recognize  two  entirely 
different  kinds  of  facts,  which  indeed  exist 
not  only  in  juridical  theory,  but  in  actual 
technical  distinctions  of  law.  Thus  in  the 
law  of  evidence  there  are  on  the  one  side  the 
*'  facts   which   prove  " — the  materials   which 


FACTS   AND   ACTS   IN   LAW        91 

help  to  establish  the  "  fact  in  issue  "  :  and  on 
the  other  side,  the  "  facts  which  are  to  be 
proved  " — those  things  which  as  soon  as  they 
have  been  established  by  evidence,  become 
definite  facts-in-law. 

A  curious  example  of  the  kind  of  legal 
problems  which  arise  in  this  connection  may 
be  given  from  an  American  case,  the  State  of 
Iowa  V.  Bell  (1870).  A  man  was  found  at 
night  hiding  in  a  room  of  a  neighbour's  house, 
to  which  he  had  obtained  access  by  stealth. 
It  would  have  been  a  clear  case  of  attempted 
burglary  if  the  evidence  had  not  shown, 
fortunately  for  the  accused,  that  he  was 
drunk  at  the  time.  The  inference  suggested 
by  the  judge  and  accepted  by  the  jury  was, 
that  the  prisoner  did  not  realize  at  the  time 
that  he  had  betaken  himself  to  a  strange 
house.  It  would,  however,  be  very  unsafe 
to  rely  on  intoxication  as  a  mitigating  circum- 
stance in  an  English  or  American  Court  in  a 
case  of  murder  or  manslaughter.  Far  from 
that,  it  has  been  repeatedly  laid  down  by 
judges  that  the  fact  of  intoxication  need  not 
entitle  a  criminal  to  lenient  treatment. 

Similar  questions  as  to  fact  would  arise  in 
estimating  the  amount  of  moral  pressure 
exerted   on   a   person    making    a    will   or    a 


92  COMMON-SENSE   IN   LAW 

contract,  or  in  ascertaining  the  degree  of  care 
or  negligence  shown  by  a  person  to  whose  keep- 
ing somebody  else's  goods  have  been  entrusted. 
Sometimes  the  Court  will  have  to  probe  very 
deep  into  social  and  moral  conceptions  of 
the  time,  or  of  a  certain  social  environment, 
in  order  to  disentangle  the  facts-in-law  on 
which  legal  consequences  of  rights  and  duties 
depend.  In  any  case  a  process  of  sifting 
evidence  from  real  life  is  necessary  in  order 
to  obtain  even  a  comparatively  small  number 
of  facts-in-law. 

2.  We  must  also  notice  that  law  sometimes 
has  to  build  up  its  pronouncements  as  to 
rights  and  duties  on  the  strength  not  of  real, 
though  select  facts,  but  of  presumptions  of 
facts  as  they  appear  in  the  aspect  officially 
recognized  by  law.  The  old  doctrine  of 
evidence  was  prolific  in  artificial  rules  in  this 
respect.  Bentham  used  to  inveigh  violently 
against  the  phantoms  produced  by  this 
artificial  treatment  of  evidence  and  the 
travesty  of  right  which  was  often  produced 
by  it.  His  philippics  were  not  in  vain,  and 
a  great  many  simplifications  and  improve- 
ments have  been  achieved  since  his  time. 
Even  now,  however,  our  law  is  not  entirely  free 
from   artificial   rules   which    may  sometimes 


FACTS   AND   ACTS   IN   LAW        93 

endanger  the  dispensing  of  strict  justice.  My 
readers  will  doubtless  remember  the  case  of 
the  murderer  Crippen.  A  specially  damning 
piece  of  evidence  against  the  accused  con- 
sisted in  the  finding  of  a  portion  of  his  pyjamas 
under  the  floor  of  the  house  with  the  remains 
of  the  body  of  his  victim.  Now  this  piece  of 
evidence  had  not  been  produced  originally 
by  the  prosecution,  and  it  was  employed  only 
by  wa}'^  of  rebutting  certain  allegations  made 
by  the  accused.  Its  introduction  at  the 
eleventh  hour  supplied  Crippen's  counsel  with 
a  gi'ound  for  trying  to  have  the  verdict  quashed 
in  the  Court  of  Criminal  Appeal. ^  "  Rebutting 
evidence,"  it  was  pleaded,  "  which  could  have 
been  given  in  chief  as  part  of  the  case  for  the 
prosecution,  cannot  be  given  to  strengthen 
the  case  for  the  prosecution  after  the  evidence 
on  both  sides  has  been  closed." 

The  reason  for  these  restrictions  is  not 
difficult  to  see;  the  intention  of  the  law  is 
that  the  prosecution  shall  not  be  able  to  keep 
back  material  arguments  till  the  last  stages 
of  the  trial  in  order  to  produce  them  at  un- 
expected moments,  when  counsel  for  the 
accused  is  not  prepared  to  meet  them.  But 
it  is  clear  that  the  rigid  application  of  the  rule 
1  R.  V.  Crijypm  (1910). 


94  COMMON-SENSE   IN   LAW 

might  have  had  deplorable  elTects  in  Crippen's 
case,  inasmuch  as  it  might  have  removed  from 
the  consideration  of  the  jury  the  question  as 
to  the  year  when  the  pyjamas  were  made, 
which  was  very  material  to  the  issue.  Fortun- 
ately the  Court  was  able  to  exercise  its 
discretion  in  the  matter.  But  there  are  many 
cases  in  which  evidence  very  valuable  in  sub- 
stance has  to  be  ruled  out  on  formal  grounds. 
Besides  these  rules  of  evidence,  Courts  are 
sometimes  bound  to  accept  certain  well- 
established  legal  presumptions  and  artificial 
facts-in-law  instead  of  real  and  ascertainable 
facts.  It  is  an  accepted  rule,  for  instance, 
that  children  born  in  wedlock  are  presumed 
to  be  the  legitimate  offspring  of  the  father, 
even  if  it  should  be  possible  to  prove  that  the 
mother  at  the  time  of  conception  actually 
cohabited  with  another  person.  The  rule  is 
intended  to  prevent  anybody  attempting, 
except  on  indisputable  evidence,  to  raise  the 
intricate  questions  connected  with  illegiti- 
macy ;  but  it  is  clear  at  the  same  time  that 
it  may  often  lead  to  the  suppression  of  truth. 
The  Courts  have  to  be  content  in  this  matter 
with  presumed  instead  of  actual  facts.  In 
this  way,  the  legal  rules,  although  they  usually 
serve  some  clearly  reasonable  purpose,  may 


FACTS   AND   ACTS   IN   LAW        95 

in  some  instances  obscure  the  real  truth  of 
the  case  under  consideration.  But  this  is 
perhaps  inevitable :  for  law  is  framed  to 
suit  average  conditions  and  may  fail  to  dis- 
entangle exceptional  circumstances. 

3.  Here,  as  in  many  other  cases,  it  is 
evident  that  the  methods  of  law  aim  only  at 
approximations  :  and  since  this  is  so,  there 
are  many  important  elements  which  cannot 
receive  explicit  treatment  by  the  Courts. 
For  instance,  it  is  often  difhcult  to  satisfy 
by  legal  means  our  natural  craving  for  m^oral 
retribution  :  and  not  infrequently  the  way  in 
which  law  approaches  problems  of  individual 
responsibility  seems  inadequate  from  the 
point  of  view  of  moral  feelings.  This  in- 
sufficiency of  method,  however,  is  the  result 
not  of  callousness  on  the  part  of  tribunals, 
but  of  the  fact  that  it  is  impossible  to  probe 
psychological  situations  by  the  means  of 
strict  legal  standards.  Take,  for  instance, 
the  treatment  of  seduction  in  English  law. 
The  strict  theory  is  that  if  a  girl  over  sixteen 
has  been  seduced,  damages  are  recoverable 
from  her  seducer  only  for  the  actual  loss  of 
services  sustained  by  her  parent  or  master. 
At  the  same  time,  it  is  often  evident  that  in 
assessing  damages  a  jury  will  be  actuated  by 


96  COMMON-SENSE   IN   LAW 

its  reprobation  of  the  defendant's  conduct; 
and  this  attitude  is  not  discouraged  by 
judges.  It  was  once  observed  by  Lord 
Chancellor  Eldon  : 

"  Although  in  point  of  form  the  action 
[for  seduction]  only  purports  to  give  a 
recompense  for  loss  of  service,  we  cannot 
shut  our  eyes  to  the  fact  that  it  is  an  action 
brought  by  a  parent  for  an  injury  to  her 
child,  and  the  jury  may  take  into  their 
consideration  all  that  she  may  feel  from  the 
nature  of  the  loss.  They  may  look  upon 
her  as  a  parent  losing  the  comfort  as  well 
as  the  service  of  her  daughter,  in  whose 
virtue  she  can  feel  no  consolation;  and  as 
the  parent  of  other  children  whose  morals 
may  be  corrupted  by  her  example."  ^ 

It  is  clear  that  the  method  of  strict  law  is 
inadequate  to  embrace  all  the  real  elements  of 
the  case,  and  it  might  be  urged  that  perhaps 
a  more  stringent  treatment  is  necessary  for  the 
seduction  itself  :  but  it  is  easy  to  see  what 
difficulties  would  arise  if  the  law  attempted 
to  apply  exact  methods  to  such  questions. 

4.  The  expression  fact  is  sometimes  ex- 
tended in  English  legal  usage  to  all  questions 
1  Bedford  v.  McKowl  (1800). 


FACTS   AND   ACTS   IN   LAW        97 

examined  and  decided  by  Courts  \vitliout 
reference  to  established  rules  of  law.  It  may- 
happen  that  there  is  no  rule  bearing  directly 
on  points  raised  in  a  trial  :  the  Court  has, 
however,  to  take  a  definite  stand  as  to  the 
problem.  Such  matters  are  sometimes  termed 
points  of  fact,  although  by  their  consideration 
in  the  given  case  a  basis  of  law  would  be 
established  and  they  would  then  pass  from 
the  domain  of  fact  into  that  of  law. 

Thus  in  cases  where  the  terms  of  a  statute 
are  in  dispute  and  no  authoritative  decision 
as  to  their  interpretation  has  yet  been  given, 
a  Court  will  interpret  the  terms  in  accordance 
with  the  facts  of  the  particular  case,  and  will 
give  a  decision  as  to  those  facts,  which  on 
subsequent  occasions  will  be  appealed  to  as  a 
matter  of  law.  In  a  recent  case  [Dallimore  v. 
Williams  (1912)]  the  plaintiff  engaged  certain 
musicians  to  perform  at  a  concert  for  a  fixed 
rate  of  remuneration;  the  defendants,  who 
were  officials  of  the  Amalgamated  Musicians' 
Union,  objected  to  the  rate  of  pay,  and  by 
means  of  circulars,  picketing  and  threats, 
induced  some  of  the  musicians  to  break  their 
contract  with  the  plaintiff.  Now  to  induce  a 
breach  of  contract  by  such  means  is,  under 
ordinary   circumstances,  a  wrong  for   which 

G 


98  COMMON-SENSE   IN   LAW 

damages  may  be  recovered  :  but  by  the  Trade 
Disputes  Act,  1906,  a  trade  union  inducing  a 
breach  of  contract  in  furtherance  of  a  trade 
dispute  is  exempt  from  hability.     The  ques- 
tion therefore  was  whether  in  this  case  the 
dispute  was  technically  a  "  trade  dispute  "  : 
if  so,  the  officials  of  the  union  could  not  be 
made  liable.     At  the  trial,  the  judge  directed 
the  jury  that  a  "  trade  dispute  "  was  one  either 
between  an  employer  and  his  employees,  or 
among  employees  themselves.     A  verdict  was 
returned  for   the   plaintiff,   from   which   the 
defendants  appealed.     The  Court  of  Appeal 
held  that  too  narrow  an  interpretation  had 
been  placed  upon  the  term  "trade  dispute  " 
by  the  judge  in  the  court  below,  and  that  it 
might  be  made  to  cover  a  dispute  between  an 
employer  and  a  trade  union,  such  as  existed 
in  the  present  case.^     In  so  deciding,  the  Court 
expressly  stated    that   its   decision   was   not 
governed  by  any  definite  authority  as  to  the 
interpretation  of  the  term,  for  the  principal 
case  relied   on   by  the  plaintiff   [Conway  v. 
Wade  (1909)]  was  held  to  have  been  decided 
on  other  grounds,   and  therefore  not  to  be 

^  A  new  trial  was  ordered :  at  the  second  trial  the 
plaintiff  was  awarded  £350  damages.  See  The  Times, 
June  18th-20th,  1913. 


FACTS  AND  ACTS  IN  LAW        99 

binding  in  the  present  instance.     Thus  the  | 
Court  was  really  deciding  a  question  of  fact, 
which,  however,  in  all  future  cases  where  the 
same  point  arises  will,  on  the  strength  of  this 
decision,  be  treated  as  a  question  of  law. 

But  I  am  bound  to  say  that  this  peculiar 
use  of  the  term  "  fact  "  is  subject  to  criti- 
cism from  a  jurisprudential  standpoint.  It 
may  be  inconvenient  to  speak  of  law  where 
there  is  no  legal  rule  to  meet  the  case,  but  it 
is  still  less  appropriate  to  speak  of  fact  where 
the  point  at  issue  does  not  touch  either  the 
circumstances  of  the  trial  or  the  material  con- 
ditions on  which  the  application  of  a  rule 
depends.  One  might  class  such  instances  as 
matters  for  judicial  decision  or  interpretation, 
or  for  legal  consideration  and  decision.  From 
a  wider  point  of  view  they  would  certainly 
belong  to  law  in  so  far  as  they  affect  the 
aggregate  of  principles  on  which  social  order 
depends. 

5.  It  has  been  made  clear  by  the  above 
remarks  that  the  principal  importance  of 
establishing  facts-in-law  consists  in  supplying 
necessary  links  between  the  circumstances 
and  events  of  ordinary  life  and  the  rules  of 
law.  In  order  to  manifest  legal  rules  in 
concrete  cases,  the  exact  points  at  which  the 


100         COMMON-SENSE   IN   LAW 

rules  apply  have  to  be  ascertained,  and  it  is 
in  these  points  that  facts-in-law  are  located. 
They  have  a  double  aspect :  they  are  ex- 
tracted from  reality,  and  they  serve  as  con- 
ditions for  the  application  of  rules  and  the 
creation  or  modification  of  rights  and  duties. 
Let  us  take  one  or  two  instances.  I  pick  up 
a  shell  by  the  seashore;  my  doing  so  is  a 
fact-in-law :  it  creates  for  me  a  right  of 
property  in  the  shell,  and  sets  in  motion  the 
rule  that  a  thing  not  belonging  to  any  par- 
ticular individual  belongs  to  the  first  person 
who  appropriates  it.  Should  a  passer-by 
snatch  the  shell  from  my  hand,  a  second  fact- 
in-law  would  arise :  it  would  be  a  delict 
against  property  on  his  part  and  he  would 
become  the  subject  of  a  duty  to  restore  the 
shell  or  its  worth  to  me,  possibly  to  pay  a 
fine  for  the  infringement  of  order,  while  I 
should  have  an  action  and  a  claim  of  right 
against  him  in  tort.  Or  again,  A  is  the  owner 
of  a  house,  of  some  furniture,  of  money  at 
the  bank.  He  dies  without  leaving  a  will. 
His  death  is  a  fact-in-law  which  calls  into 
operation  the  rules  as  to  intestate  succession. 
His  solicitor  advertises  for  heirs.  A  distant 
cousin  appears  and  asserts  his  right  to  the 
inheritance.     Besides  the  fact-in-law — i.e.  the 


FACTS   AND   ACTS   IN   LAW      101 

death  of  A — which  has  opened  the  succession, 
the  claimant  would  have  to  produce  other 
facts -in-law,  a  certified  pedigree,  eventually 
witnesses  to  establish  his  own  descent,  perhaps 
the  death  or  legal  disappearance  of  other 
relations,  and  so  forth.  It  might  be  said  that 
among  the  innumerable  facts  of  actual  life 
some  become  accentuated  as  links  in  the 
formation,  modification,  or  assertion  of  rights. 
These  are  facts -in-law. 

6.  Another  group  of  legal  counterparts  to 
events  of  real  life  consists  of  "  acts -in-law." 
An  act -in-law  is  necessarily  personal  because 
it  requires  a  subject.  Its  essence  is  the 
exercise  of  a  will.  It  also  requires  an  object, 
because  the  act  of  a  person  is  always  directed 
towards  some  definite  aim.  Such  objects 
vary  widely,  but  they  have  one  attribute  in 
common  :  they  are  all  varieties  of  right. 
The  proposition  expressing  an  act  of  law  may 
be  stated  in  the  following  typical  manner  : 
I  (subject),  create,  modify,  abolish,  or  transfer 
(predicate),  a  right  (object).  The  difference 
from  an  ordinary  act  is  evident.  Ordinary 
acts  admit  of  all  kinds  of  predicates,  wath  or 
without  juridical  consequences  {e.g.  I  eat  a 
cake,  I  write  a  letter,  I  write  a  book),  while 
the  predicates  in  sentences  expressing  acts  of 


102         COMMON-SENSE   IN    LAW 

law  take  the  shape  either  of  the  constitution, 
aboHtion,  transfer,  or  modification  of  a  right. 
Therefore  the  sentence  *'  I  ride  my  bicycle" 
does  not  refer  to  an  act -in-law,  although  it  un- 
doubtedly refers  to  the  exercise  of  a  right.  But 
the  sentence  "  I  give  my  bicycle  to  you  "  does 
refer  to  an  act-in-law,  namely,  to  the  transfer 
of  my  right  to  another  person.  Lastly,  there 
is  a  difference  as  to  objects,  since  the  objects 
of  acts-in-law  are  rights,  while  the  objects  of 
ordinary  acts  are  as  multifarious  as  the  realities 
of  the  material  or  the  spiritual  world. 

An  act-in-law  is  similar  to  an  act  of  legis- 
lation. The  latter  is  effected  by  society,  the 
former  by  members  of  society;  the  latter 
creates  and  abolishes  rules,  the  former  creates 
and  abolishes  rights — in  so  far,  of  course,  as 
an  individual  member  is  allowed  by  society 
to  create  and  to  abolish  rights.  In  a  sense 
it  may  be  said  that  representatives  of  society 
itself,  such  as  judges  or  administrative  officers, 
may  act  in  law  when  their  action  or  direction 
consists  in  the  concrete  attribution  of  rights. 
A  judgment  conferring  on  the  plaintiff  a  right 
of  possession  which  has  been  wrongly  exercised 
by  the  defendant  may  be  said  to  constitute  an 
act-in-law.  The  action  of  justices  of  the 
peace,  conferring  a  licence  on  the  owner  of  a 


FACTS  AND  ACTS  IN  LAW      103 

public-house,  is  an  act-in-law.  In  another 
sense  crimes  and  torts  are  acts-in-law  in  so 
far  as  they  produce  legal  consequences  and 
create  rights  and  duties  as  to  compensation. 
But  in  the  first  case  the  judges  and  officers 
act  as  mouthpieces  of  the  State,  though  it 
may  not  always  be  easy  to  distinguish  between 
the  elements  of  law-making  on  the  one  hand 
and  of  government  and  the  attribution  of 
rights  on  the  other;  in  fact,  the  latter  is 
derived  from  the  former.  In  the  second  case 
the  principle  of  the  action  creating  rights  is 
exactly  the  reverse  of  that  which  is  embodied 
in  acts  of  law  conforming  to  substantive  rules. 
The  subject  creates  legal  consequences  against 
his  will;  it  is  the  reaction  from  his  intended 
act  which  constitutes  rights.  Therefore  both 
administrative  acts  and  delicts  had  better 
be  kept  by  themselves  as  distinct  groups  of 
actions  constituting  rights. 

The  technical  term  "  act-in-law,"  which  is 
more  familiar  to  Continental  than  to  English 
lawyers  in  its  equivalent  forms,  negotkim, 
Rechtsgeschaft,  acte  juridique,  applies  primarily 
to  actions  of  individual  citizens  intentionally 
constituting  or  modifying  rights.  We  should 
perhaps  mention  here  the  subdivision  of  acts- 
in-law  into  two  classes,  unilateral  and  bilateral. 


104         COMMON-SENSE   IN   LAW 

A  testament  or  donation  may  serve  as  an 
example  of  a  unilateral  act  :  here  it  is  only 
the  intention  of  one  person — ^the  testator  or 
the  donor — which  is  material  (although  the 
act  is  complicated  by  the  requirement  of 
acceptance  on  the  part  of  the  devisee  or 
donee).  Bilateral  acts-in-law  require  the 
consensus  of  two  or  more  wills,  as  may  be 
seen  in  the  familiar  cases  of  sale,  lease,  or 
bailment. 

7.  When  I  speak  of  the  intentional  consti- 
tution or  modification  of  rights,  I  do  not 
mean  that  the  subject  of  the  act-in -law  is 
bound  to  realize  clearly  and  fully  the  legal 
consequences  of  his  action.  Very  often  lay- 
men effect  acts-in-law  without  a  clear  know- 
ledge of  their  legal  consequences.  Thus  an 
undergraduate  hires  furnished  rooms  for  the 
academic  term  :  he  knows,  of  course,  that  he 
is  making  an  agreement  which  binds  him  to 
pay  rent  and  not  to  damage  the  furniture, 
while  the  landlady  is  obliged  to  let  him  stay 
in  the  rooms  for  some  eight  weeks.  But  I 
doubt  whether  the  ordinary  undergraduate 
realizes  when  he  makes  the  agreement  how 
far  an  unexpected  event,  say  a  contagious 
illness  in  the  house,  would  relieve  him  from 
his  obligations,  or  to  what  extent  the  landlady 


FACTS   AND   ACTS   IN   LAW      105 

has  a  right  of  entering  the  rooms  against  his 
will  or  a  right  of  ejectment  if  rent  be  in 
arrear,  and  the  like.  I  presume  that  even 
students  reading  law  would  find  it  hard  to 
answer  all  questions  as  to  the  possible  legal 
consequences  of  this  contract.  Yet  the  under- 
graduate who  takes  lodgings  undoubtedly 
effects  an  act-in-law.  His  general  purpose 
is  directed  towards  the  creation  of  rights  and 
obligations,  and  therefore  his  resolve  to  take 
the  rooms  is  construed  as  an  act-in-law  with 
all  its  premeditated  and  unpremeditated  legal 
consequences.  In  the  same  way  in  ordering 
a  suit  from  a  tailor  a  person  acts  in  law, 
although  he  may  not  be  aware  of  the  precise 
legal  rules  which  govern  the  transaction. 
Similarly  a  person  may  suppose  himself  un- 
able to  perform  certain  acts-in-law,  and  yet 
may  be  held  by  a  Court  to  have  performed 
them  and  to  be  legally  responsible  for  them. 
Thus  in  Chappie  v.  Cooper  (1844),  Mr.  Cooper's 
widow  was  sued  by  an  undertaker  for  the 
expenses  of  her  husband's  funeral.  She  was 
under  age  at  the  time  of  her  husband's  death, 
and  therefore  pleaded  that  she  was  not  bound 
by  the  contract,  since  she  was  an  infant  at 
the  time  it  was  made.  Now  it  is  a  rule  of 
law  that  while  an  infant  is  generally  unable 


106        COMMON-SENSE   IN   LAW 

to  make  valid  contracts,  he  may  do  so  for 
necessaries  and  for  things  which  are  clearly 
for  his  benefit.  The  question  therefore  was 
whether  the  burial  of  a  spouse  was  a  "  neces- 
sary "  within  the  meaning  of  the  rule.  The 
Court  held  that  it  was  both  "  a  personal 
advantage,  and  reasonably  necessary."  Now 
it  is  clear  that  Mrs.  Cooper  certainly  did  not 
realize  the  legal  consequences  of  her  act  when 
she  arranged  with  the  undertaker,  but  that 
did  not  prevent  the  Court  from  drawing  in- 
ferences from  her  contract  and  holding  her 
bound  by  it. 

8.  What  is  needed,  therefore,  is  a  general 
intention  to  constitute  or  to  acquire  rights, 
to  constitute  or  to  assume  obligations.  In 
the  simplified  psychology  of  legal  doctrine 
intention  is  ascribed  to  the  will  as  such  and 
called  the  element  of  free  will. 

In  order  to  ascertain  whether  a  person  really 
meant  to  exert  his  will  by  an  act -in-law,  one 
of  two  methods  may  be  followed.  In  ancient 
times  an  act-in-law  had  to  be  clothed  with 
elaborate  forms  which  were  not  only  intended 
to  serve  as  proof  of  the  transaction,  but  also 
helped  to  show  that  the  subject  of  the  act 
had  had  the  deliberate  intention  of  performing 
it.     Under  feudal   law,    a   person   making   a 


FACTS  AND  ACTS  IN  LAW      107 

grant  of  land  was  obliged  to  go  through  a 
ceremony  of  investiture  of  which  the  sur- 
render of  a  flag,  stick,  sod,  or  the  like  formed 
the  principal  part.  Disputes  might  often 
arise  as  to  whether  the  ceremony  had  been 
precisely  followed,  and  a  valid  conveyance 
effected.  In  course  of  time  the  formalities 
were  simplified  and  made  subservient  to  the 
general  intention.  The  motives  which  led 
to  the  transitions  are  well  shown  in  a  seven- 
teenth-century case,^  in  which  it  was  said 
that,  "  although  most  properly  livery  of 
seisin  {i.e.  formal  conveyance)  is  made  by 
delivery  of  a  twig  or  turf  of  the  land  itself, 
whereof  livery  of  seisin  is  to  be  given ;  and  so 
it  is  good  to  be  observed ;  yet  a  delivery  of  a 
turf  or  twig  growing  upon  other  land;  of  a 
piece  of  gold  or  silver,  or  other  thing  upon  the 
land  in  the  name  of  seisin  is  sufficient,  and 
when  the  feoffor  is  upon  the  land,  his  words 
without  any  act  are  sufficient  to  make  livery 
of  seisin ;  as  if  he  saith,  '  I  deliver  seisin  of  this 
land  to  you  in  the  name  of  all  the  land  con- 
tained in  this  deed  ' ;  or  such  other  words, 
without  any  ceremony  or  act  done."  Even 
at  the  present  day,  however,  certain  survivals 
keep  up  the  memory  of  old  forms  :  thus  when 
^  Thoroughgood' s  Case  (1612),  as  reported  by  Coke. 


108         COMMON-SENSE   IN   LAW 

a  person  making  a  lease  places  his  finger  on  a 
wafer  representing  a  seal,  and  pronounces  the 
sacramental  words,  "  I  deliver  this  as  my  act 
and  deed,"  he  is  performing  an  act  suggested 
by  the  long  history  of  formal  conveyance. 

But  modern  jurisprudence  is  generally 
averse  from  such  formalism,  which  it  considers 
not  so  much  a  guarantee  of  certainty  as 
a  possible  trap  for  the  unwary.  The  existence 
of  a  free  will  generating  the  act -in-law  is 
usually  ascertained  by  direct  investigation, 
which  may  be  difficult  to  carry  out,  but  which 
satisfies  the  more  developed  sense  of  justice 
better  than  mere  form.  A  signed  document 
would  still  be  required  in  important  cases, 
e.  g.  for  the  purpose  of  conveying  land,  but 
precautions  are  taken  that  such  documents 
should  not  be  obtained  by  intimidations  or 
fraud.  A  party  may  plead  in  rescission  of  a 
formally  correct  sale  that  he  was  made  to 
sign  the  deed  under  duress,  or  that  a  draft 
which  had  been  prepared  and  signed  for  future 
delivery  subject  to  certain  conditions  had 
been  surreptitiously  appropriated  by  the  other 
party.  Or  again,  a  party  to  a  contract  may 
maintain  and  bring  evidence  to  prove  that  the 
agreement  was  entered  into  on  the  strength  of 
fraudulent  misrepresentations. 


FACTS   AND   ACTS   IN   LAW      109 

Here,  as  in  many  other  cases,  the  law 
has  only  very  imperfect  means  of  determining 
the  element  of  free  resolve  in  the  subjects  of 
acts-in-law.  Too  often  presumption  takes 
the  place. of  conviction  established  by  cogent 
proof.  But  this  drawback  is  rather  due  to 
the  legal  treatment  of  typical  transactions 
than  to  any  special  failing  of  the  theory  of 
acts-in-law.  It  is  exceedingly  difficult  to 
take  hold  of  intentions  by  the  help,  as  it 
were,  of  legal  pincers,  and  we  have  to  be 
content  in  law  with  approximations.  The 
law  sets  up  a  standard  of  reasonable  conduct, 
which  ought  to  fit  the  requirements  of  average 
persons.  It  assumes  that  in  certain  given 
circumstances  a  reasonable  man  will  normally 
act  in  a  certain  way.  For  example,  it  assumes 
that  when  a  man  makes  the  promise  of  a 
benefit  to  another,  he  generally  does  so  in 
consideration  of  some  benefit  to  himself  : 
therefore  it  is  a  rule  of  English  law  that  in 
any  agreement  not  embodied  in  a  formal 
deed  under  seal,  there  must  be  some  "  valuable 
consideration,"  that  is,  an  actual  benefit  to 
the  promisee,  or  an  actual  detriment  to  the 
promisor :  and  if  a  man  makes  a  purely 
gratuitous  and  informal  promise,  he  may  in 
law  repudiate  it  at  any  moment,  though  he 


no         COMMON -SENSE   IN   LAW 

may  be  under  the  strongest  moral  obligation 
to  redeem  it.  At  one  time  it  was  held  by 
Lord  Mansfield  that  a  moral  obligation  would 
constitute  sufficient  consideration  in  law : 
but  this  view  never  met  with  general  accept- 
ance, and  in  modern  theory  consideration 
must  have  some  actual  material  value.  Thus 
in  Thomas  v.  Thomas  (1842)  a  promise  by  a 
person  to  grant  a  cottage  to  the  widow  of 
his  brother  deceased  was  held  not  to  be 
supported  by  the  "  moral  consideration  " 
of  pious  respect  for  the  wishes  of  the 
deceased  :  but  inasmuch  as  the  widow  had 
promised  a  rent  of  £l  and  the  expense  of 
repairs,  that  was  held  to  be  sufficient  "  valu- 
able consideration  "  to  make  the  agreement 
binding. 

Very  difficult  problems  arise  from  the  fact 
that  obligations  are  sometimes  entered  into 
on  the  strength  of  misrepresentations.  The 
Court  has  to  decide  how  far  the  person  induced 
by  such  misrepresentations  to  perform  an  act- 
in-Iaw  has  been  deprived  of  the  exercise  of  his 
free  will.  Very  often  it  is  not  easy  to  make 
a  distinction  between  an  error  of  judgment, 
which  the  Courts  are  not  called  on  to  rectify, 
and  a  misconception  induced  by  fraud,  which 
from  the  point  of  view  of  law  entitles  the 


FACTS   AND  ACTS  IN  LAW      HI 

person  deceived  to  a  remedy.  I  will  give  one 
case  in  illustration  of  the  difficulties  of  the 
position,  and  the  means  by  which  a  Court 
may  solve  them. 

In  Redgrave  v.  Hurd  (1881)  R.,  a  solicitor, 
advertised  that  he  had  a  moderate  practice 
with  extensive  connections  and  was  shortly 
retiring,  and  would  take  as  partner  an  efficient 
lawj^er  who  would  not  object  to  purchase  R.'s 
suburban  residence,  valued  at  £1600.  H. 
answered  and  asked  for  an  interview^  at 
w^hich  R.  said  the  practice  brought  in  an 
income  of  about  £300.  H.,  after  a  rather 
careless  inspection  of  the  books,  thought  that 
the  practice  might  be  worth  not  £300  as  was 
stated  by  R.,  but  about  £200 ;  and  thereupon 
signed  an  agreement  to  purchase  the  house, 
without  having  a  reference  to  the  practice 
inserted  in  the  agreement.  He  entered  into 
possession,  and  finding  that  in  fact  the  practice 
was  worthless,  refused  to  complete  the  pur- 
chase of  the  house.  R.  then  brought  action 
to  compel  him  to  do  so.  H.  resisted  on  the 
ground  of  misrepresentation  as  to  the  value 
of  the  practice,  and  the  Court  decided  in  his 
favour.  One  of  the  grounds  of  decision  was 
stated  by  Sir  George  Jessel  in  the  following 
terms  : 


112         COMMON-SENSE   IN   LAW 

"  If  a  man  is  induced  to  enter  into  a  con- 
tract by  a  false  representation,  it  is  not  a 
sufficient  answer  to  him  to  say  that  if  he 
had  used  due  diligence,  he  could  have  found 
out  that  the  statement  was  not  true. 

"  One  of  the  most  familiar  instances  is 
where  men  issue  a  prospectus  in  which  they 
make  false  statements  of  the  contracts 
entered  into  before  the  formation  of  a  com- 
pany, and  then  say  that  the  contracts  them- 
selves may  be  inspected  at  the  solicitor's 
offices.  It  has  always  been  held  that  those 
who  accepted  those  false  statements  as  true 
are  not  debarred  from  their  remedy  because 
they  neglected  to  look  at  the  contracts." 

9.  Besides  the  analysis  of  the  act-in-law  as 
an  expression  of  free  will,  it  has  to  be  examined 
from  the  point  of  view  of  its  conformity  with 
accepted  rules.  Of  course,  an  individual 
citizen  or  an  association  cannot  aspire  to  the 
power  of  creating  rights  or  dealing  with  rights 
in  a  way  forbidden  by  the  law  of  the  State  to 
which  they  belong.  Their  activity  in  pro- 
ducing rights  is  necessarily  subordinated  to 
the  legal  framework  established  by  the 
commonwealth.  It  would  be  idle,  for  in- 
stance, to  bequeath  money  to  a  church,  say 


FACTS   AND   ACTS   IN  LAW      113 

to  the  Roman  Catholic  Cathedral  in  London, 
for  the  purpose  of  saying  Masses  for  the  soul 
of  the  testator.  Such  an  act-in-law,  which 
would  be  perfectly  valid  in  Spain  or  in  Italy, 
would  be  void  in  England  by  a  Statute  of 
1547,  which  forbids  "superstitious  practices." 

The  necessity  for  the  act-in-law  to  conform 
with  received  rules  goes  further  :  it  is  ad- 
mitted that  acts  in  law  which  clash  with  re- 
ceived notions  of  morality  or  public  policy 
are  legally  void.  The  institution  of  a  prize 
for  the  purpose  of  remunerating  the  most 
artful  deceit  performed  within  the  last  year 
would  not  be  upheld  by  any  tribunal,  although 
it  might  be  unimpeachable  in  form  and  the 
cases  of  deceit  admitted  for  competition 
might  keep  clear  of  criminal  prosecution.  It 
has  been  held  that  a  bequest  made  on  the 
condition  that  a  person  should  not  enter  the 
army  or  navy  is  void  at  law  because  the  con- 
dition is  clearly  against  public  policy  [In  re 
Beard:  Beard  v.  Hall  (1908)]. 

In  a  recent  case  which  has  attracted  some 
attention  through  its  quaint  setting,  a 
theatrical  manager  had  entered  into  a  con- 
tract with  a  theatrical  agent  to  arrange  a 
certain  sensational  incident  for  the  purpose 
of    advertisement.     Two    ladies,  engaged   by 


114         COMMON-SENSE   IN   LAW 

the  agent,  entered  the  stalls  in  extravagantly 
large  hats  which  they  refused  to  remove, 
whereupon  they  were  ejeetcd  by  the  manager. 
Subsequently  they  took  proceedings  for 
assault,  but  the  magistrate  found  that  the 
manager  was  within  his  right  in  removing 
them  from  the  theatre.  When  Mr.  Dann, 
the  agent,  claimed  the  fee  agreed  upon  for 
arranging  this  interlude  and  fictitious  trial, 
the  theatre  manager,  Mr.  Curzon,  refused  to 
pay,  and  the  Court  had  to  decide  whether  the 
act- in-law  was  of  such  a  nature  as  to  be  binding 
on  the  parties.  It  was  held  that  it  was  not. 
The  judges  thought  that  the  simulated  offence 
and  purpose  of  advertisement  for  which  it 
was  enacted  showed  a  disrespect  for  the 
function  of  justice  and  were  in  so  far  directed 
against  public  utility.  Therefore  in  spite  of 
the  clear  consent  of  the  parties  in  formulating 
their  agreement  this  act -in-law  was  declared 
void  [Dann  v.  Curzon  (1910)]. 

In  these  cases,  the  contracts  were  contrary 
to  "  public  policy."  But  the  law  goes  even 
further,  and  refuses  to  uphold  any  contract 
which  is  based  on  private  immorality.  On 
the  principle  "  Ecc  turpi  causa  non  oritur 
actio,'^  it  refuses  to  recognize  the  validity  of 
any  contract  the  purpose  of  which  is  clearly 


FACTS   AND   ACTS   IN   LAW       115 

immoral.  Thus  in  a  recent  case  [Upfill  v. 
Wright  (1911)]  the  defendant  was  sued  for  the 
rent  of  a  flat  in  Southampton  Row.  It  was 
shown  in  evidence  that  the  plaintiff's  agent, 
at  the  time  when  he  executed  the  lease,  knew 
that  the  defendant  was  the  mistress  of  a 
certain  man  who  visited  her  constantly  at  the 
flat.  The  Court  therefore  found  that  the 
plaintiff,  through  his  agent,  deliberately  let 
the  premises  for  an  immoral  purpose,  and 
that  he  was  unable  to  recover  the  rent.  The 
principle  is  clearly  stated  by  Mr.  Justice 
Bucknill  :  "If  a  woman  takes  a  house  in 
order  to  live  in  it  as  the  mistress  of  a  man 
and  to  use  it  for  that  purpose,  and  the  land- 
lord at  the  time  when  the  lease  is  executed 
knows  that  it  is  taken  for  that  purpose,  the 
landlord  cannot  recover  the  rent." 


CHAPTER   V 

LEGISLATION 

1.  Turning  now  to  a  special  consideration 
of  rules  of  law,  we  have  to  ask  from  what 
sources  they  are  derived.  The  expression 
"  sources  "  may  be  used  in  different  ways. 
We  may  talk  of  Bracton's  treatise  or  of  the 
Year  Book  as  sources  of  English  mediaeval 
Law,  meaning  that  we  derive  a  considerable 
part  of  our  knowledge  of  English  mediaeval 
law  from  them.  Similarly  students  of  history 
speak  of  the  sources  for  the  history  of  Eliza- 
beth's reign,  meaning  the  various  contem- 
porary narratives  and  documents.  But  we 
are  not  now  using  the  word  "  source "  in 
such  a  general  sense.  We  are  inquiring  by 
what  processes  rules  of  law  may  be  evolved, 
and  whether  these  processes  point  to  certain 
kinds  of  authority  as  the  sources  from  which 
such  rules  are  technically  derived.  It  is  not 
difficult  to  see  that  in  spite  of  all  the  variety 
of  legal  systems  in  force  in  different  countries 
116 


LEGISLATION  117 

and  at  different  ages,  legal  rules  emanate  from 
a  certain  limited  number  of  authoritative 
sources,  and  that  in  the  process  of  their  elabora- 
tion they  follow  certain  grooves  according  to 
the  character  of  their  origin. 

To  begin  with,  it  seems  clear  that  a  law 
may  be  either  made  in  advance  for  the  express 
purpose  of  regulating  future  events,  or  else 
declared  by  Courts  of  Justice  in  the  exercise 
of  their  jurisdiction.  Herein  is  the  funda- 
mental distinction  between  legislation  and 
judge-made  law. 

An  Act  of  the  Parliament  of  Great  Britain 
may  serve  as  an  example  of  a  law  enacted  by 
legislators.  Codification  aiming  at  the  re- 
duction of  separate  and  discrepant  laws  to 
one  system  appears  merely  as  one  of  the 
modes  of  legislation,  e.g.  the  Code  Napoleon 
in  France,  or  the  new  Civil  Code  {Burgerliches 
Gesetzbuch)  in  Germany. 

As  for  judge-made  law,  it  may  assume  one 
of  three  aspects  : 

(1)  Customary  law,  which  comprises  legal 
rules  based  on  traditional  usage  and 
declared  in  popular  courts  :  the  cus- 
toms observed  in  the  borough  courts 
of  Southampton   or  of   Nottingham, 


118         COMMON-SENSE   IN   LAW 

for  instance,  or  the  custom  of  gavel- 
kind succession  in  Kent. 

(2)  Judicial  decisions  form  the  basis  of  rules 

evolved  by  judges,  and  serve  in  their 
aggregate  as  material  for  the  case 
law  of  which  the  English  and  Anglo- 
American  common  laAV  are  such 
conspicuous  instances. 

(3)  Equity  in   its    jurisprudential    sense   is 

derived  from  the  discretion  of  judges 
or  arbitrators  in  applying  general 
considerations  of  justice  and  fairness 
to  the  decision  of  legal  conflicts. 

The  law  of  nature  or  of  reason  has  been 
regarded  by  some,  but  by  no  means  by  all 
jurists,  as  a  set  of  rules  dictated  to  man  by 
nature  itself  and  therefore  obligatory  for  all 
commonwealths . 

The  sources  mentioned  may  be  examined 
ill  different  order  in  accordance  with  the  main 
purpose  which  the  student  has  in  view.  I 
will  take  them  in  the  order  of  my  enumera- 
tion not  because  it  is  the  order  correspond- 
ing to  the  probable  historical  sequence  in 
which  they  arose,  but  because  it  is  the 
most  convenient,  as  it  seems  to  me,  for 
the  purpose  of  exposition,  since  it  proceeds 


LEGISLATION  119 

from  simpler  to  more  complex  forms  of  law- 
making. 

2.  An  Act  of  Parliament,  or  statute,  aims 
emphatically  at  the  formulation  of  legal 
rules  in  a  definite  manner.  English  Acts 
commonly  use  side  by  side  expressions  which 
have  the  same  or  nearly  the  same  meaning, 
in  order  to  prevent  attempts  at  evading  a 
law  on  the  pretence  that  some  particular 
term  of  phraseology  does  not  occur  in  it. 
Observe,  for  example,  the  abundance  of 
synonym  in  the  following  passage  (Gaming 
Act,  1845,  s.  17)  : 

"  Every  person  who  shall,  by  any  fraud, 
or  unla^vlul  device,  or  ill -practice  in  playing 
at  or  with  cards,  dice,  tables,  or  other  game, 
or  in  bearing  a  part  in  the  stakes,  wagers, 
or  adventures,  or  in  betting  on  the  sides  or 
hands  of  them  that  do  play,  or  in  wagering 
on  the  event  of  any  game,  sport,  pastime, 
exercise,  win  from  any  other  person  to 
himself  or  any  other  or  others,  any  sum  of 
money  or  valuable  thing,  shall  be  deemed 
guilty  of  obtaining  such  money  or  valuable 
thing  from  such  other  person  by  a  false 
pretence,  with  intent  to  cheat  or  defraud 
such     person     of     the    same,    and,    being 


120         COMMON-SENSE   IN   LAW 

convicted  thereof,  shall  be  punished  accord- 
ingly." 

If  there  be  a  wTitten  constitution  which 
requires  a  special  process  for  modification  or 
amplification,  laws  made  by  legislative  bodies 
are  subject  to  revision  from  the  point  of 
view  of  their  conformity  to  this  constitution.^ 
A  notable  example  is  seen  in  the  legal  system 
of  the  United  States,  where  the  Supreme  Court 
has  power  to  determine  the  "  constitution- 
ality "  of  laws  passed  by  Congress  and  ratified 
by  the  President,  as  well  as  those  passed  by 
different  States  of  the  Union.  Thus  in  1801 
a  certain  Marbury  was  appointed  by  the 
President  to  the  Office  of  Justice  of  the  Peace 
in  the  district  of  Columbia.  The  appoint- 
ment was  confirmed  by  the  Senate,  and  a 
commission  made  out,  signed  and  sealed, 
but  not  transmitted  to  Marbury.  At  the 
last  moment,  circumstances  came  to  light 
which  made  the  appointment  undesirable, 
and  Madison,  the  then  Secretary  of  State,  re- 
fused to  deliver  the  commission.  Marbury, 
however,  contended  that  his  title  was  com- 
plete,   since   the    office   was    not    subject   to 

^  In  this  case  the  constitution  appears  as  a  fundamental 
law  to  which  all  other  laws  have  to  be  subordinated. 


LEGISLATION  121 

removal  by  the  President;  he  therefore 
applied  to  the  Supreme  Court,  under  s.  13 
of  the  Judiciary  Act,  1789,  for  a  writ  of 
mandamus,  which  is  an  order  to  compel  the 
executive  officer  to  act  in  accordance  with  the 
legal  claim.  The  application  was  refused  on 
the  ground  stated  by  Chief  Justice  Marshall  : 
"  That  the  provision  of  the  Judiciary  Act 
purporting  to  give  the  Supreme  Court  juris- 
diction, in  a  proceeding  original  and  not 
appellate,  to  issue  writs  of  mandamus  to 
public  officers  was  not  warranted  by  the 
Constitution,  and  was  therefore  inoperative 
and  void  "  [Marbury  v.  Madison  (1803)]. 

3.  It  is  clear  that  when  a  competent  legis- 
lature has  made  a  law  in  accordance  with  the 
Constitution,  the  Courts  cannot  overrule  it 
and  are  bound  to  give  effect  to  it.  It  would 
be  wrong,  however,  to  suppose  that  statutes, 
however  carefully  formulated,  reduce  the 
application  of  the  law  to  a  mere  mechanical 
process  of  bringing  a  given  case  under  a  given 
section.  It  is  plain  that  however  explicit  the 
words  of  a  statute  may  be,  a  Court  must 
determine  the  exact  meaning  of  the  phrase- 
ology before  it  can  apply  the  law.  Attempts 
have  sometimes  been  made  to  get  rid  of 
this  necessity  of  judicial  interpretation :  for 


122         COMMON-SENSE   IN   LAW 

example,  the  introduction  to  the  Prussian 
Code  of  1794  went  so  far  as  to  forbid  all  inter- 
pretation as  distinct  from  direct  application, 
and  ordered  that  tribunals  should  lay  all 
cases  of  doubt [ul  verbal  meaning  before  a 
special  committee  of  jurists  and  statesmen.^ 
This  device,  however,  proved  entirely  unsuc- 
cessful, for  it  was  found  impossible  to  draw  a 
precise  line  between  application  and  interpre- 
tation, and  to  reduce  a  Court  to  the  functions 
of  a  mere  sorting-machine.  Statute  law  or 
codified  law  necessarily  consists  of  sentences, 
the  words  of  which  may  be  differently  under- 
stood by  different  people;  and  the  first  duty 
of  a  Court  is  therefore  one  of  literal  interpre- 
tation. The  law-reports  abound  with  ex- 
amples of  this  necessity,  which  is  perpetually 
imposed  upon  tribunals,  and  which  often 
gives  rise  to  difficult  problems.  Let  us  take 
an  example  from  one  of  the  Workmen's 
Compensation  cases,  which  have  been  so 
numerous  of  recent  years  and  have  raised 
so  many  points  of  literal  interpretation.  Li 
Nisbet  V.  Rayne  and  Burn  (1910)  the  facts 
were  that  one  Nisbet  had  been  employed  as 
a  cashier  by  the  defendants,  a   firm  of  coal- 

^  Sees.  47  and  48  of  Introductien  to  the  Prussian  Land- 
recJit,  repealed  in  1798, 


LEGISLATION  123 

owners  :  and  it  was  part  of  his  duties  to  take 
every  week  from  the  office  to  the  colliery  the 
cash  out  of  which  the  wages  of  the  employees 
at  the  colliery  were  paid.  While  so  engaged, 
he  was  robbed  and  murdered.  Now  under  the 
Workmen's  Compensation  Act,  1906  (s.  1), 
when  a  workman  has  met  his  death  by  an 
accident  "  arising  out  of,  and  in  the  course 
of  his  employment,"  his  widow  may  claim 
compensation  from  the  employers.  Nisbet's 
widow  claimed  under  the  section  :  but  one 
of  the  questions  in  the  case  was  whether  a 
murder  could  be  considered  an  "  accident  '- 
within  the  meaning  of  the  Act.  It  was  con- 
tended for  the  defendants  that  "  accident  *' 
essentially  implies  the  absence  of  intention; 
whereas  a  murder  is  clearly  a  deliberate  and 
intentional  act  on  the  part  of  the  criminal. 
But  the  Court  held  otherwise.  Lord  Justice 
Farweil  said  : 

"  The  intention  of  the  murderer  is  im- 
material :  so  far  as  any  intention  on  the 
part  of  the  victim  is  concerned,  his  death 
was  accidental ;  and  although  it  is  true 
that  one  would  not  in  ordinary  parlance 
say,  for  example,  that  Desdemona  died  by 
accident,  this  is  because  the  horror  of  the 


124         COMMON-SENSE   IN   LAW 

crime  dominates  the  imagination  and  com- 
pels the  expression  of  the  situation  in  terms 
relating  to  the  crime  and  the  criminal 
alone;  it  would  be  quite  natural  to  say 
that  a  man  who  died  from  the  bite  of  a 
dog  or  the  derailment  of  a  train  caused 
by  malicious  persons  putting  an  obstacle 
on  the  line,  died  by  accident." 

And  Lord  Justice  Kennedy  said  : 

"  An  historian  who  described  the  end  of 
Rizzio  by  saying  that  he  met  with  a  fatal 
accident  in  Holyrood  Palace  would  fairly, 
I  suppose,  be  charged  with  a  misleading 
statement  of  fact.  .  .  .  But  whilst  the 
description  of  death  by  murderous  violence 
as  an  '  accident '  cannot  honestly  be  said 
to  accord  with  the  common  understanding 
of  the  word,  wherein  is  implied  a  negation 
of  wilfulness  and  intention,  I  conceive  it  to 
be  my  duty  rather  to  stretch  the  meaning 
of  the  word  from  the  narrower  to  the  wider 
sense  of  which  it  is  inherently  and  etymo- 
logically  capable,  that  is,  '  any  unforeseen 
and  untoward  event  producing  personal 
harm,'  than  to  exclude  from  the  operation 
of  this  section  a  class  of  injury  which  it  is 


LEGISLATION  125 

quite  unreasonable  to  suppose  that  the 
Legislature  did  not  intend  to  include  within 
it." 

Sometimes  the  interpretation  of  a  term 
may  be  complicated  by  the  fact  that  a  word 
has  changed  in  meaning  since  the  enactment 
of  the  statute  in  which  it  is  employed.  An 
example  of  this  change  or  extension  in  the 
meaning  of  a  word  is  provided  by  a  recent 
case  [Pollard  v.  Turner  (1912)],  in  which  the 
appellant  had  employed  a  boy  to  deliver 
bread,  which  was  carried  from  door  to  door 
in  a  basket  affixed  to  a  bicycle.  The  Bread 
Act,  1836,  enacts  that  any  person  who  carries 
bread  for  delivery  in  a  "  cart  or  carriage  '* 
shall  be  provided  with  scales  and  weights 
with  which  the  bread  may  be  weighed  on 
demand  by  any  purchaser.  The  boy  did  not 
carry  scales  and  weights,  and  his  master  was 
charged  under  the  Act.  The  question  was 
whether  a  bicycle  could  be  considered  a 
"  cart  or  carriage  "  within  the  meaning  of 
an  Act  which  was  passed  before  bicycles  were 
known.  The  Court  of  Appeal  held  that  it 
might  be  so  considered,  and  the  conviction 
was  affirmed. 

Sometimes  the  respect   of   judges   for  the- 


12C         COMMON-SENSE   IN    LAW 

actual  words  of  a  statute  may  be  so  great  that 
they  will  consider  themselves  bound  by  the 
exact  phraseology,  even  though  the  effect 
of  so  doing  may  be  to  produce  awkward  conse- 
quences in  the  law.  This  principle  of  literal 
interpretation  is  well  illustrated  by  a  recent 
trade  union  case  which  has  attracted  con- 
siderable attention  [Vacher  v.  London  Society 
of  Comjjositors  (1912)].  An  action  of  libel 
and  conspiracy  to  publish  libels  was  brought 
by  plaintiffs,  a  company  of  printers,  against 
defendants,  who  were  the  trade  union  of 
compositors.  There  is  a  provision  in  tlie 
l>ade  Disputes  Act,  1906  (s.  4,  subsec.  1) 
to  this  effect  :  "  An  action  against  a  trade 
unioiTk' ...  in  respect  of  any  tortious  act 
alleged  to  have  been  committed  by  or  on 
behalf  of  the  trade  union  shall  not  be  enter- 
tained by  any  court."  Libel  and  conspiracy 
to  publish  libels  are,  of  course,  torts  at  com- 
mon law ;  the  defendants  did  not  dispute  the 
torts,  but  claimed  immunity  under  the  section 
cited.  Now  in  all  other  sections  of  the  Act 
in  which  immunity  for  wrongful  acts  is  given, 
the  wrongful  acts  are  specified  as  being  done 
"  in  contemplation  or  furtherance  of  a  trade 
dispute  "  :  and  it  was  argued  that,  although 
these    words    were    not    contained    in    s.    4, 


LEGISLATION  127 

sub-sec.  1,  the  Legislature  meant  them  to  be 
understood  :  for  this,  it  was  said,  was  an 
inference  to  be  drawn  from  the  construction 
of  the  whole  enactment .  The  Court  of  Appeal, 
however  (Lord  Justice  Farwell  dissenting), 
refused  to  read  the  words  into  the  section, 
and  held  the  defendants  exempt.  The  effect 
of  this  judgment  is,  to  quote  Lord  Justice 
Farwell,  practically  to  give  trade  unions  "  a 
licence  to  commit  torts  (in  plain  English,  to 
injure  their  neighbours)  wdth  impunity,  and 
to  inflict  losses  and  misery  on  all  or  any  of 
his  Majesty's  subjects  as  long  as  they  please, 
without  responsibility  "  :  and  it  was  argued 
that  the  Legislature  could  not  have  intended 
anything  which  was  so  clearly  contrary  to 
public  policy;  but  Lord  Justice  Kennedy 
said  :  "  I  decline  to  speculate  in  regard  to  any 
statutory  enactment  which  it  becomes  my 
duty  to  interpret  as  to  what  was  the  policy 
to  which  the  Legislature  thought  it  was  giving 
the  effect  of  the  law."  The  House  of  Lords 
upheld  the  decision  of  the  majority  of  the 
Court  of  Appeal,  and  expressly  approved 
the  judgment  of  Lord  Justice  Kennedy. 
The  Lord  Chancellor  (Viscount  Haldane) 
said  that  he  did  not  propose  to  specu- 
late  concerning   the   motive   of    Parliament. 


128         COMMON-SENSE   IN   LAW 

The  topic  was  one  on  which  judges  could  not 
profitably  or  properly  enter.  Their  province 
was  the  very  different  one  of  construing  the 
language  in  which  the  legislature  had  finally 
expressed  its  conclusions,  and  if  they  were  to 
undertake  the  other  province,  they  were  in 
danger  of  going  astray  in  a  labyrinth  to  the 
character  of  which  they  had  no  sufficient 
guide. 

4.  Another  group  of  problems  arises  in 
connection  with  what  may  be  called  technical 
inter'pretation.  Very  often  a  statute  is  con- 
cerned not  merely  with  general  principles  of 
social  order  which  are  more  or  less  intelligible 
to  everybody,  but  with  the  regulation  of  some 
highly  technical  matter  which  requires  special 
knowledge.  In  these  cases,  the  Court  has  not 
merely  to  determine  the  general  meaning  of  a 
word,  but  the  peculiar  technical  significance 
which  the  Legislature  intended  to  convey. 

Such  technical  points  may  arise  in  cases 
which  at  first  sight  seem  quite  straight- 
forward. In  JJnwin  v.  Hanson  (1891)  the 
plaintiff  claimed  damages  for  the  cutting  and 
mutilation  of  certain  trees.  Under  the  High- 
ways Act,  1835,  if  a  man's  trees  are  growing  so 
as  to  exclude  light  and  air  from  the  highway 
he  may  be  ordered  to  "  prune  or  lop  "  them  : 


LEGISLATION  129 

and  if  he  fail  to  do  so,  the  surveyor  of  high- 
ways, on  the  authority  of  two  Justices  of  the 
Peace,  may  enter  and  "  prune  or  lop  "  the 
trees.  An  order  under  this  Act  was  issued 
against  the  plaintiff,  and,  as  he  failed  to 
comply  with  it,  the  defendant  (surveyor  of 
highways)  entered,  and,  among  other  things, 
cut  the  tops  off  two  fir  trees.  The  plaintiff 
claimed  that  he  had  no  statutory  power  to  do 
this.  Evidence  was  given  at  the  trial  to  show 
that  the  term  "  lop  "  is  used  in  agriculture 
and  forestry  of  cutting  off  branches  laterally, 
while  the  technical  term  for  cutting  off  the  tops 
of  trees  is  to  "  top."  The  Court  therefore  held 
that  the  surveyor  had  exceeded  his  statutory 
powers.  "  If  the  Act,"  said  Lord  Esher, 
"  is  one  passed  with  reference  to  a  par- 
ticular trade,  business,  or  transaction,  and 
words  are  used  which  everybody  conversant 
with  that  trade,  business  or  transaction,  knows 
and  understands  to  have  a  particular  meaning 
in  it,  then  the  words  are  to  be  construed  as 
having  that  particular  meaning,  though  it 
may  differ  from  the  common  or  ordinary 
meaning  of  the  words.  For  instance,  the 
'  waist  '  or  '  skin  '  are  well-known  terms  as 
applied  to  a  ship,  and  nobody  would  think 
of  their  meanine  the  waist  or  skin  of  a  person 


130         COMMON-SENSE   IN   LAW 

when  they  are  used  in  an  Act  of  ParUament 
dealing  with  ships." 

It  is  not  to  be  expected  that  judges  will 
be  experts  in  all  the  multifarious  technical 
matters  with  which  statute  law  deals  :  and 
therefore  they  have  often  to  look  for  the 
explanation  of  a  term  or  a  precept  to  technical 
information  supplied  by  specialists.  Un- 
fortunately, however,  it  happens  only  too 
often  that  experts  will  give  conflicting  opinions 
or  vague  indications  which  it  is  not  easy  to 
put  into  juristic  shape.  Take  the  following 
clause  of  the  German  Civil  Code  :  ^  "A 
person  may  lose  the  power  of  disposing  of 
his  property,  if  he  cannot  attend  to  his  busi- 
ness affairs  on  account  of  mental  disease  or 
mental  debility."  What  is  mental  disease 
and  what  mental  debility  from  the  scientific 
point  of  view  ?  What  abnormal  conditions 
of  the  mind  justify  a  court  in  decreeing  that 
a  person  should  be  put  under  curatorship 
or  forbidden  to  dispose  of  his  property  ?  How 
are  limits  to  be  drawn  between  states  of 
health  justifying  complete  and  partial  loss 
of  the  power  of  disposition  ?  Medical  science 
will  supply  lay  inquirers  with  rather  vague 
and  contradictory  answers  to  these  questions. 
1  S.  6,  1.     Cf.  8.  104,  3  and  s.  114. 


LEGISLATION  131 

It  will  probably  tell  them  that  the  relation 
between  mental  disease  and  mental  debility 
is  not  easy  to  discover  from  the  medical  point 
of  view,  and  that  it  would  be  quite  out  of 
the  question  to  connect  the  full  loss  of  dis- 
positive power  with  disease  and  the  partial 
loss  of  it  with  mental  debility.  It  is  not  easy  to 
utilize  such  advice  for  the  purpose  of  deciding 
a  case.  The  Court  will  have  to  fall  back  on 
common  sen^e  or  legal  tradition  in  most 
instances  of  this  kind.  I  should  like  to  give 
one  example  of  the  perplexing  problems  which 
are  sometimes  set  to  judges  and  juries. 
Though  the  case  I  am  about  to  cite  deals  with 
the  construction  of  a  common  law  rule  and 
not  of  a  statutory  clause,  it  will  sufficiently 
illustrate  the  problems  of  interpretation  to 
which  I  refer.  In  Regina  v.  Burton  (1863), 
the  prisoner,  a  youth  of  eighteen,  was  indicted 
for  the  murder  of  a  boy.  It  appeared  that 
the  deceased  boy  had  been  playing  on  the 
Lines,  a  public  place  at  Chatham,  where  the 
prisoner  saw  him,  and  was  seen  near  him. 
Some  hours  afterwards,  the  child's  dead  body 
was  found  on  the  Lines.  The  throat  was  cut, 
and  there  were  marks  of  a  violent  struggle. 
The  police  were  engaged  in  prosecuting  their 
inquiries,  when  the  prisoner  gave  himself  up. 


132         COMMON-SENSE    IN    LAW 

and  admitted  the  act,  recounting  all  the  cir- 
cumstances with  perfect  intelligence.  He 
added :  "I  knew  the  boy,  and  knew  his 
mother,  but  I  had  no  particular  ill-feeling 
against  the  boy;  only  I  had  made  up  my 
mind  to  murder  somebody."  A  doctor  de- 
posed that  the  prisoner's  mother  had  twice 
been  to  a  lunatic  asylum  and  his  brother  was 
of  weak  intellect.  .  .  .  The  witness  had  at- 
tended the  prisoner  himself  on  two  occasions, 
and  believed  he  was  labouring  under  what, 
in  the  profession,  would  be  considered  as 
"moral  insanity,"  that  is,  he  knew  perfectly 
well  what  he  was  doing  but  had  no  control 
over  himself. 

Mr.  Justice  Wightman,  in  summing  up  the 
case,  said  that  as  there  was  no  doubt  about 
the  act,  the  only  question  was  whether  the 
prisoner,  at  the  time  he  committed  it,  was  in 
such  a  state  of  mind  as  not  to  be  responsible 
for  it.  In  M'Naughten's  Case  (1843),  the 
judges  laid  down  the  rule  to  be  that  there 
must,  to  raise  the  defence,  be  a  defect  of 
reason  from  disease  of  the  mind,  so  as  that 
the  person  did  not  know  the  nature  and  quality 
of  the  act  he  committed,  or  did  not  know  whether 
it  was  right  or  wrong.  Now  to  apply  this  rule 
to  the  present  case  would  be  the  duty  of  the 


LEGISLATION  133 

jury.  It  was  not  mere  eccentricity  of  con- 
duct which  made  a  man  legally  irresponsible 
for  his  acts.  The  medical  man  called  for 
the  defence  defined  homicidal  mania  to  be 
a  propensity  to  kill;  and  described  moral 
insanity  as  a  state  of  mind  under  which  a 
man,  perfectly  aware  that  it  was  wrong  to 
do  so,  killed  another  under  an  uncontrollable 
impulse.  This  would  appear  to  be  a  most 
dangerous  doctrine  and  fatal  to  the  interests 
of  society  and  to  security  of  life.  The 
question  was  whether  such  a  theory  was  in 
accordance  with  law.  The  rule  laid  down  by 
the  judges  was  quite  inconsistent  with  such 
a  view ;  for  it  was  that  a  man  was  responsible 
for  his  actions  if  he  knew  the  difference  between 
right  and  wrong. 

The  jury,  on  this  interpretation  of  the  law, 
found  the  prisoner  guilty,  and  he  was  executed. 

The  case  illustrates  an  important  principle 
of  technical  interpretation  :  it  will  be  seen 
that  although  expert  opinion  was  given  in 
the  case,  it  was  subject  to  searching  judicial 
review.  Thus,  even  in  matters  of  the  most 
technical  nature,  the  ultimate  opinion  must 
rest  with  the  Court. 

5.  Sometimes  the  best  way  to  ascertain  the 
meaning  of  a  clause  will  be  to  consider  the 


134         COMMON-SENSE   IN   LAW 

actual  elaboration  of  the  enactment.  Minutes 
of  committees'  debates  in  Parliament,  drafts 
of  documents  and  of  examinations  of  witnesses, 
may  enable  us  to  revive,  as  it  were,  the  state 
of  mind  and  the  process  of  reasoning  in 
legislators  or  negotiators  of  treaties.  French 
Jurisprudence  especially  has  made  great  use 
of  this  method  of  historical  interpretation  in 
construing  Napoleon's  Code  in  the  sense  in 
which  its  clauses  were  drafted  in  the  Conseil 
d'etat  in  1804. 

An  interesting  example  of  the  same  method 
has  recently  been  before  the  public  in  this 
country.  When  a  Bill  was  introduced  in  the 
Congress  of  the  United  States  of  America  for 
the  regulation  of  traffic  through  the  Panama 
Canal,  and  it  became  apparent  that  a  dis- 
crimination as  to  rates  would  be  made  be- 
tween ships  belonging  to  the  United  States 
and  those  of  other  countries.  Great  Britain 
entered  a  protest  against  such  discrimination 
on  the  ground  that  it  infringed  Clause  111  of 
the  Hay-Pauncefote  Treaty  of  1901.  The 
clause  reads  : 

"  Art.  Ill,  1  :  The  canal  shall  be  free  and 
open  to  the  vessels  of  commerce  and  of  war 
of  "all  nations  observing  these  rules,  on  terms 


LEGISLATION  135 

of  entire  equality,  so  that  there  shall  be  no 
discrimination  against  any  such  nation,  or 
its  citizens  or  subjects,  in  respect  of  the  con- 
ditions or  charges  of  traffic,  or  otherwise. 
Such  conditions  and  charges  of  traffic  shall 
be  just  and  equitable." 

On  the  side  of  the  United  States  it  was 
contended  that  the  clause  forbids  discrimina- 
tion not  between  all  Powers  without  excep- 
tion, but  between  all  Powers  using  the  canal 
with  the  exception  of  the  United  States,  who 
are  building  the  canal  and  will  administer  it 
when  completed.  Should  we  limit  our  con- 
sideration of  the  clause  to  its  actual  words, 
the  question  would  hardly  admit  of  a  con- 
clusive solution.  Each  side  might  support 
its  interpretation  by  plausible  arguments  ; 
but,  as  was  urged  by  European  jurists,  the 
matter  assumes  a  different  aspect  if  one  recalls 
the  circumstances  and  negotiations  which  led 
up  to  the  Hay-Pauncefote  Treaty.  Firstly, 
it  was  always  assumed  that  the  administration 
of  the  canal  would  be  organized  on  the  lines 
of  the  Declaration  of  Constantinople,  which 
regulated  the  use  of  the  Suez  Canal  :  and  in 
that  document  no  preference  was  given  in 
regard  to  rates  to  any  Power.     Secondly,  it 


136         COMMON-SENSE   IN   LAW 

was  pointed  out  that  the  Hay-Pauncefote 
Treaty  was  substituted  for  the  Clayton-Bulwer 
Treaty  of  1850,  which  contained  among  other 
provisions  a  clause  ^  which  was  thus  inter- 
preted by  Mr.  Blaine  (Secretary  of  State  under 
Cleveland)  in  a  dispatch  to  Lowell  (United 
States  Ambassador  at  the  Court  of  St.  James) : 
"  The  United  States  did  not  seek  any  exclusive 
or  narrow  commercial  privileges.  It  agrees, 
and  will  proclaim,  that  the  same  rights  and 
privileges,  the  same  tolls  and  obligations,  for 
the  use  of  the  canal  shall  apply  with  absolute 
impartiality  to  the  merchant  marine  of  every 
nation  of  the  globe." 

It  is  not  our  purpose  here  to  consider  the 
merits  of  the  rival  contentions  in  this  case, 
but  it  is  probable  that  if  it  ever  came  before 
the  Hague  Tribunal,  the  method  of  historical 
interpretation  of  the  disputed  clause  would 
not  be  disregarded. 

The  method  is  evidently  quite  appropriate 
in  order  to  discover  the  intentions  of  law- 
givers or  negotiators  of  treaties.  But  it  has 
never  been  much  in  favour  in  the  practice  of 
English  Courts  ;  and  even  on  the  Continent  it  is 
recognized  more  and  more  that  circumstances 
may  have  changed  so  much  since  the  time 
1  Art.  VIII. 


LEGISLATION  137 

of  the  original  promulgation  that  it  would  be 
preposterous  to  bind  the  Courts  strictly  to  the 
views  which  obtained  at  that  time. 

6.  A  very  important  group  is  formed  by 
the  interpretation  of  clauses  in  which  the 
words  and  terms  are  not  difficult  to  under- 
stand, but  the  rule  itself  is  so  general  and 
vague,  or  so  antiquated,  that  the  Court  has 
to  add  limitations  or  subdivisions  of  its  own 
to  supply  gaps  or  to  modernize  the  applica- 
tion of  the  rule.  In  such  cases  the  interpreta- 
tion is  not  merely  literal,  but  may  be  called 
widening  interpretation.  In  its  capacity  of 
interpreter  the  Court  is,  strictly  speaking, 
precluded  from  introducing  new  principles 
and  from  modifying  or  correcting  the  existing 
law  :  but,  as  we  have  seen  in  connection  with 
literal  interpretation,  a  court  cannot  be  limited 
to  mere  mechanical  functions,  and  this  is 
especially  so  when  judges  are  called  on  to 
determine  not  merely  the  exact  significance 
of  a  particular  term,  but  the  general  aim  and 
effect  of  a  statutory  provision.  Here  it  is 
often  necessary  for  Courts  to  interpret  clauses 
by  somewhat  complicated  methods,  and  not 
infrequently  the  effect  of  this  wider  interpre- 
tation is  to  supply  gaps  in  existing  laws. 
An  instance  is  furnished  by  the  Statute  of 


138         COMMON-SENSE   IN   LAW 

Frauds,  which  in  its  fourth  section  provides 
that 

"No  action  shall  be  brought  whereby 
to  charge  .  .  .  any  person  .  .  .  upon  any 
contract  or  sale  of  lands  tenements  or  here- 
ditaments or  any  interest  in  or  concerning 
them,  or  upon  any  agreement  that  is  not 
to  be  performed  within  the  space  of  one 
year  from  the  making  thereof  unless  the 
agreement  upon  which  such  action  shall 
be  brought  or  some  memorandum  or  note 
thereof  shall  be  in  writing  and  signed  by 
the  party  to  be  charged  therewith  or  some 
other  person  thereunto  by  him  la^vfully 
authorized." 

But  on  the  fringe  of  the  clause,  as  it  were, 
there  remained  several  doubtful  points  which 
have  required  much  judicial  interpretation  :  for 
example,  the  important  question  whether  the 
course  of  the  year  mentioned  in  the  clause  is 
to  be  reckoned  for  both  parties  or  only  for  the 
defendant :  and  thus  it  has  been  necessary  for 
the  omissions  in  a  single  section  of  this  Act 
to  be  filled  up  by  a  long  and  laborious  process 
of  judicial  interpretation — ^which,  indeed,  is 
even  now  far  from  complete. 


LEGISLATION  139 

An  interesting  instance  of  interpretation 
which  supplies,  as  it  were,  the  place  of  a 
provision  missing  from  a  statute,  is  to  be 
found  in  the  judgment  of  the  Privy  Council 
in  a  Canadian  case  [The  Attorneys-General 
of  the  Provinces  of  Ontario  and  others  v.  The 
Attorney-General  for  Canada  (1912)].  The 
point  raised  was  whether  or  not  an  Act  of 
the  Dominion  Parliament  authorizing  the 
putting  of  questions  either  of  law  or  of  fact 
to  the  Supreme  Court  and  requiring  the 
judges  of  that  Court  to  answer  them  on  the 
request  of  the  Governor  in  Council,  was  a 
valid  enactment  within  the  powers  of  that 
Parliament.  It  was  argued  by  the  Provinces 
that  "  no  Legislature  in  Canada  has  the 
right  to  pass  an  Act  for  asking  such  questions 
at  all."  The  power  to  ask  questions  of  the 
Supreme  Court,  sought  to  be  bestowed  upon 
the  Dominion  Government  by  the  Act  im- 
pugned, was  so  wide  in  its  terms  as  to  admit 
of  a  gross  interference  with  the  judicial  char- 
acter of  that  Court,  and  was  therefore  of  grave 
prejudice  to  the  rights  of  the  Provinces  and  of 
individual  citizens.  Any  question,  whether 
of  law  or  fact,  it  was  urged,  could  be  put  to 
the  Supreme  Court,  and  they  would  be  re- 
quired to  answer  it  with  their  reasons.     Though 


140         COMMON-SENSE   IN   LAW 

no  immediate  effect  was  to  result  from  the 
answer  so  given,  and  no  right  or  property 
was  thereby  to  be  adjudged,  yet  the  indirect 
result  of  such  a  proceeding  might  and  would 
be  most  fatal.  When  the  opinion  of  the 
highest  Court  of  Appeal  for  all  Canada  had 
once  been  given  upon  matters  both  of  law 
and  of  fact,  it  was  said,  it  was  not  in  human 
nature  to  expect  that,  if  the  same  matter 
were  again  raised  upon  a  concrete  case  by  an 
individual  litigant  before  the  same  Court,  its 
members  could  divest  themselves  of  their  pre- 
conceived opinions ;  and  thus  there  might 
ensue  not  merely  a  distrust  of  their  freedom 
from  prepossession,  but  actual  injustice,  in- 
asmuch as  they  would  in  fact,  however 
unintentionally,  be  biassed. 

The  Judicial  Committee,  however,  decided 
against  these  contentions,  and  gave  the 
following  reasons,  among  others,  for  their 
decision  ; 

"  In  the  interpretation  of  a  completely 
self-governing  Constitution  founded  upon 
a  written  organic  instrument,  such  as  the 
British  North  America  Act,  if  the  text  is 
explicit  the  text  is  conclusive,  alike  in  what 
it  directs  and  what  it  forbids.     When  the 


LEGISLATION  141 

text  is  ambiguous  .  .  .  recourse  must  be  had 
to  the  context  and  scheme  of  the  Act.  Again, 
if  the  text  says  nothing  expressly,  then  it  is 
not  to  be  presumed  that  the  Constitution 
withholds  the  power  altogether.  On  the 
contrary,  it  is  to  be  taken  for  granted  that 
the  power  is  bestowed  in  some  quarter,  un- 
less it  be  extraneous  to  the  statute  itself  (as, 
for  example,  a  power  to  make  laws  for  some 
part  of  his  Majesty's  Dominions  outside  of 
Canada)  or  otherwise  is  clearly  repugnant  to 
its  sense.  .  .  . 

"  Is  it  then  to  be  said  that  a  power  to 
place  upon  the  Supreme  Court  the  duty  of 
answering  questions  of  law  or  fact  when  put 
by  the  Governor  in  Council  does  not  reside 
in  the  Parliament  of  Canada  ?  This  par- 
ticular power  is  not  mentioned  in  the  British 
North  America  Act,  either  explicitly  or  in 
ambiguous  terms.  In  the  91st  section,  the 
Dominion  Parliament  is  invested  with  the 
duty  of  making  laws  for  the  peace,  order, 
and  good  government  of  Canada,  subject  to 
expressed  reservations.  In  the  101st  section, 
the  Dominion  is  enabled  to  establish  a 
Supreme  Court  of  Appeal  from  the  Provinces. 
And  so  when  the  Supreme  Court  was  estab- 
lished it  had  and  has  jurisdiction  to  hear 


142         COMMON-SENSE   IN   LAW 

appeals  from  the  Provincial  Courts.  But  of 
any  power  to  ask  the  Court  for  its  opinion, 
there  is  no  word  in  the  Act.  All  depends 
upon  whether  such  a  power  is  repugnant  to 
that  Act." 

The  Judicial  Committee  came  to  the  con- 
clusion that  it  was  not  repugnant.  They 
observed  that  the  right  of  putting  questions 
to  the  law  courts  as  to  the  state  of  the  law 
had  been  exerted  and  was  still  extant  under 
the  Constitution  of  Great  Britain,  that  the 
Dominion  Parliament  had  made  use  of  this 
right  six  times  without  its  actions  being 
challenged,  and  that  the  Provinces  actually 
exercised  that  right  in  regard  to  their  own 
Courts.  Under  these  circumstances,  the 
Judicial  Committee  thought  that  there  was 
no  juridical  ground  for  declaring  the  Act 
passed  by  the  Dominion  Parliament  to  be 
invalid. 

Striking  instances  of  widening  interpret- 
ation are  afforded  by  the  problems  set  to  the 
ingenuity  of  the  judges  of  the  Supreme  Court 
of  the  United  States  by  the  necessity  of 
subordinating  the  expansion  of  modern  civil- 
ization to  the  provisions  of  a  constitution 
framed  in  1788.     Any  attempt  on  the  part 


LEGISLATION  143 

of  legislators  to  make  laws  excessively  rigid 
must  inevitably  compel  tribunals  to  put  as 
wide  a  construction  as  possible  on  their 
power  of  interpretation  :  and  this  result  has 
undoubtedly  been  produced  by  the  obstacles 
which  the  Constitution  of  the  United  States 
has  opposed  to  its  own  amendment. ^ 

Article  I,  s.  8,  of  the  Constitution  of  the 
United  States  contains  a  number  of  clauses 
conferring  on  the  Federal  Legislature  the 
power  to  make  laws  for  the  Union  in  regard 
to  certain  specified  matters.  One  of  the  sub- 
sections of  s.  8  empowers  Congress  to  coin 
money  and  to  regulate  its  value,  while  another 
confers  upon  it  the  power  to  regulate  com- 
merce with  foreign  countries  and  between 
different  States.  Both  sub-sections  gave  rise 
to  contradictory  interpretation.  Under  s.  8 
Congress  declared  the  paper  notes  issued  by 
the  United  States  legal  tender  for  the  pay- 
ment of  debts,  in  spite  of  the  fact  that  the 

^  As  is  well  known,  an  amendment  can  only  be  initiated 
by  a  majority  of  two-thirds  of  both  Houses  of  Congress, 
or  two-thirds  of  the  legislatures  of  individual  states;  it 
can  only  be  carried  with  the  consent  of  a  majority  of 
three-fourths  of  the  legislatures  or  of  the  Constitutional 
Conventions.  Tliese  provisions  make  the  process  of 
amendment  practically  unworkable — except  by  political 
convulsions  like  that  of  the  Civil  War,  which  led  to  the 
passing  of  Articles  13,  14  and  15. 


144         COMMON-SENSE   IN   LAW 

paper  money  brought  a  much  lower  price  in 
the  market  than  the  gold  and  silver  coins  to 
which  its  units  nominally  correspond.  When 
the  Legal  Tender  Law  was  enacted  in  1870, 
private  individuals  refused  to  accept  notes 
at  their  face  value  in  payment  for  debts, 
and  when  the  cases  came  up  for  decision, 
the  Supreme  Court  began  by  giving  a  strict 
interpretation  to  the  clause  of  the  Consti- 
tution and  invalidated  the  law  passed  by 
Congress  as  unconstitutional,  because  there 
was  no  mention  in  the  clause  of  a  power  to 
give  notes  an  artificial  value  as  against  coined 
money.  In  consequence  of  changes  in  the 
composition  of  the  Supreme  Court,  however, 
this  interpretation  was  overruled  as  early  as 
1871,  and  the  Legal  Tender  Law  was  admitted 
to  be  within  the  power  conferred  by  clause  8. 
Another  difficulty  arises  under  this  clause 
with  regard  to  the  regulation  of  commerce. 
The  power  of  Congress  to  regulate  interstate 
commerce  implies,  of  course,  that  commerce 
within  each  State  is  to  be  regulated  by  the 
authorities  of  the  State.  Yet  the  inter- 
dependence of  the  various  departments  of 
commerce  is  very  great,  and  it  was  found 
impossible  to  assign  jurisdiction  strictly 
according  to  territorial  divisions.     As  one  of 


LEGISLATION  145 

the  judges  of  the  Supreme  Court  (Justice 
Moody)  put  it :  "  It  is  said  that  Congress  has 
never  before  enacted  legislation  of  this  nature 
for  the  government  of  interstate  commerce 
by  land.  .  .  .  The  fundamental  fallacy  of 
this  argument  is  that  it  misunderstands  the 
nature  of  the  Constitution  .  .  .  and  forgets 
that  its  unchanging  provisions  are  adaptable 
to  the  infinite  variety  of  the  changing  con 
ditions  of  our  national  life.  ...  It  is  not 
too  much  to  say  that  the  large  needs  of  the 
factory  and  the  household  are  no  longer  de- 
pendent on  the  resources  of  the  locality,  but 
are  largely  supplied  by  the  products  of  other 
states."  As  regards  the  transport  of  goods, 
it  was  held  that  the  Federal  Government  had 
authority  even  when  certain  parts  of  the 
transport  service  were  in  the  hands  of  carriers 
within  the  limits  of  a  particular  State.  In 
the  case  of  the  Daniel  Ball,  a  steamer  plying 
within  the  State  of  Michigan,  the  Supreme 
Court  stated  the  doctrine  for  the  first  time : 

"  If  the  authority  of  the  United  States 
Government  does  not  extend  to  an  agency 
in  such  commerce  when  that  agency  is 
confined  within  the  limits  of  a  State,  its 
entire  authority  may  be  defeated.     Several 

K 


146         COMMON-SENSE   IN   LAW 

agencies  combining,  each  taking  up  the 
commodity  transported  at  the  bomidary 
hne  at  one  end  of  a  state,  and  leaving  it 
at  the  boundary  Hne  at  the  other  end, 
the  federal  jurisdiction  would  be  entirely 
ousted,  and  the  constitutional  provision 
would  become  a  dead  letter." 

The  principle  was  naturally  extended  to 
transport  by  land.  On  the  other  hand,  the 
Supreme  Court  has  insisted  hitherto  on  draw- 
ing a  line  of  delimitation  between  commerce 
and  manufacturing  industry,  treating  the  first 
as  an  interstate  concern  even  when  a  particular 
firm  of  merchants  is  established  in  some 
single  State,  but  refusing  to  extend  the  same 
view  to  factories.  In  1906  Congress  passed 
a  law  providing  "  that  every  carrier  engaged 
in  such  commerce  should  be  liable  to  any  of 
its  employees  for  all  damages  caused  by  the 
negligence  of  any  of  its  officers,  and  that  the 
fact  that  the  employee  was  guilty  of  con- 
tributory negligence  should  not  of  itself  bar 
recovery  " ;  but  the  Supreme  Court  declared 
this  Act  of  Congress  to  be  unconstitutional, 
because  it  "  applied  in  terms  to  any  of  the 
employees  of  a  firm  and  thus  affected  em- 
ployees not  engaged  in  interstate  and  foreign 


LEGISLATION  147 

commerce."  It  is  very  difficult,  however,  to 
uphold  strictly  this  line  of  cleavage,  and  the 
Supreme  Court  will  probably  be  constrained 
to  widen  its  interpretation  of  the  clause. 

7.  As  a  result  of  all  these  observations  we 
are  entitled  to  say,  I  think,  that  legislation  as 
a  source  of  law  is  inseparable  from  a  process 
of  interpretation  by  the  Courts,  which  in  itself 
amounts  to  a  subordinate  source  of  law.  It 
is  impossible  to  curtail  the  freedom  of  judges 
in  analysing  cases  and  applying  general  rules 
in  ways  not  indicated  in  the  rule  and  not 
premeditated  by  the  legislators.  Thus  in  the 
simplest  and  most  emphatic  expression  of 
the  law-making  power  of  societies,  we  find 
that  another  factor  asserts  itself  by  the  side 
of  that  of  deliberate  prospective  commands, 
namely,  the  force  of  public  opinion  and  of 
professional  opinion  as  manifested  in  the 
action  of  judges.  They  are  undoubtedly 
persons  in  authority,  but  their  voice  has  a 
decisive  Aveight  in  such  questions  not  merely  on 
account  of  this  external  authority,  but  chiefly 
by  reason  of  the  necessities  imposed  by  logic, 
by  moral  and  by  practical  considerations. 


CHAPTER   VI 

CUSTOM 

1.  Custom  as  a  source  of  law  comprises  legal 
rules  which  have  neither  been  promulgated 
by  legislators  nor  formulated  by  profession- 
ally trained  judges,  but  arise  from  popular 
opinion  and  are  sanctioned  by  long  usage. 
The  word  "  custom "  may  mean  a  great 
deal  besides  this ;  it  may,  for  instance,  denote 
the  usual  behaviour  of  men  in  certain  circum- 
stances ;  thus  in  the  inquiry  into  the  Titanic 
disaster,  attempts  were  made  to  ascertain 
whether  or  not  it  was  customary  for  captains 
of  ships  to  reduce  speed  when  near  icebergs. 
The  apportionment  of  responsibility  for  torts 
and  crime,  as  well  as  the  interpretation  of 
contracts,  often  turns  on  the  consideration  of 
such  habits  and  presumptions.  But  these 
inquiries  into  habitual  behaviour  have  nothing 
to  do  with  what  is  termed  customary  law  or 
legal  customs.  The  latter  is  restricted  to 
rules  regulating  rights  when  those  rules  are 
established  not  by  legislators  or  by  professional 
148 


CUSTOM  149 

lawyers,  but  by  popular  practice.  Primitive 
law  is  to  a  large  extent  based  on  such  customs, 
while  with  the  progress  of  society  they  tend 
to  be  displaced  by  express  legislation  and  by 
rules  elaborated  by  lawyers.  The  historical 
school  led  by  Savigny  attached  the  greatest 
importance  to  this  source  of  law  :  it  was  in 
their  view  the  unsophisticated  sense  of  the 
nation  in  regard  to  questions  of  right.  Being 
based  on  national  character  and  on  the 
opinions  of  the  people,  custom  was  regarded 
by  them  as  the  outward  expression  of  latent 
principles  which  were  sure  to  be  more  in 
keeping  with  the  notions  of  justice  ingrained 
in  a  given  society  than  the  artificial  creations 
of  statecraft  or  of  scientific  jurisprudence. 
They  pointed  out  how  such  artificial  super- 
structures were  often  doomed  to  destruction 
on  account  of  the  latent  hostility  with  which 
they  were  received  by  the  people  for  whom 
they  had  been  built  up  :  how  powerless  purely 
rationalistic  contrivances  are  apt  to  be  when 
brought  in  contact  with  realities  governed 
by  entirely  different  psychological  tendencies  : 
and  they  contended  that  the  surest  method 
for  rearing  a  durable  and  imposing  edifice  of 
positive  law  was  to  build  it  up  on  foundations 
supplied   by   national   custom  and  historical 


150         COMMON-SENSE   IN   LAW 

usage.  But  the  enthusiasm  for  this  particular 
source  of  law  has  cooled  down  a  great  deal, 
and  the  teaching  of  the  historical  school  has 
been  subjected  to  most  searching  and  hostile 
criticism. 

Laws  and  legal  customs  are  undoubtedly 
coloured  by  historical  circumstances,  and 
depend  to  a  great  extent  on  the  complex 
result  which  may  be  described  as  national 
character  or  national  spirit.  Germans  treat 
questions  of  law  and  right  in  a  very  different 
way  from  Frenchmen  or  Englishmen.  But 
they  also  write  poetry  and  paint  pictures  in 
a  different  way,  and  yet  no  one  would  think 
of  defining  poetry  or  painting  as  the  ex- 
pression of  national  ideas  in  literature  or  art. 
We  are  asking  what  law,  literature,  art  mean, 
and  not  how  they  are  affected  by  national 
character. 

The  leaders  of  the  historical  school  always 
spoke  of  legal  custom  as  the  creation  of  a 
people  at  large  :  while  in  reality  most  customs 
arise  from  local  usage,  and  legal  customs  like 
those  of  mediaeval  Germany  or  mediaeval 
France  present  a  bewildering  variety  of  pro- 
vincial, municipal,  manorial  and  professional 
rules  :  and  it  is  only  by  State  legislation  and 
by  the  centralizing  work  of  Royal  Courts  that 


CUSTOM  151 

national  unity  is  gradually  evolved.  A 
striking  example  of  the  growth  of  custom 
and  its  incorporation  into  the  common  law 
is  provided  in  England  by  the  Law  Merchant. 
Originally  the  rules  governing  mercantile 
intercourse  grew  up  by  usage,  and  were 
recognized  among  merchants  themselves  as 
possessing  binding  authority.  These  customs 
in  England  were  throughout  a  long  period  a 
definite  body  of  special  rules  administered  by 
local  courts  with  the  help  of  professional 
experts  :  but  in  course  of  time,  and  luider  the 
influence  of  great  lawyers  like  Lord  Mansfield, 
they  became  absorbed  into  the  common  law. 
This  body  of  particular  customary  law  is,  as 
was  said  in  a  well-known  case,  "  neither  more 
nor  less  than  the  usages  of  merchants  and 
traders  .  .  .  ratified  by  the  decisions  of 
courts  of  laAv,  which,  upon  such  usages 
being  proved  before  them,  have  adopted 
them  as  settled  law  "  :  ^  and  at  the  present 
day  most  of  the  rules  are  to  be  found  em- 
bodied in  the  Sale  of  Goods  Act,  1893. 

The    mystic    talk    about    popular    convic- 
tion as  to  law  originates  to  a  great  extent 
in  a  confusion  between  opinion  and  positive 
rules,  while  at  the  same  time  special  wisdom 
1  Goodwin  v.  Eobarta  (1875). 


152         COMMON-SENSE   IN   LAW 

is  often  assumed  in  cases  in  which  it  would 
have  been  equally  wise  to  go  either  to  the 
right  or  to  the  left,  and  custom  merely 
testifies  to  a  more  or  less  casual  choice  between 
two  or  three  equally  expedient  courses.  Why 
should  two  witnesses  be  required  to  make  a 
will  and  not  three,  or  why  should  it  be  neces- 
sary to  summon  a  party  three  times  before 
claiming  the  intervention  of  an  official  to  help 
to  bring  the  recalcitrant  opponent  to  trial  ? 
As  a  matter  of  abstract  wisdom,  two  or  four 
times  would  do  equally  well. 

Lastly,  if  popular  custom  is  natural  and 
characteristic  in  early  stages  of  legal  history, 
as  a  child-like  speech  and  manners  are  natural 
and  characteristic  of  infancy,  it  would  be  as 
preposterous  to  try  to  fetter  advanced  civiliza- 
tion by  rudimentary  customs  as  it  would  be 
to  dress  a  grown-up  man  in  a  child's  clothes. 
A  stage  is  necessarily  reached  by  any  pro- 
gressive community  when  naive  and  tradi- 
tional notions  of  right  must  give  way  before 
sharper  dialectics  and  systematized  learning. 
The  fact  that  law  becomes  more  and  more  the 
special  province  of  professional  lawyers  is 
neither  strange  nor  regrettable. 

2.  In  spite  of  these  criticisms,  perfectly 
justified  in  themselves,  there  is  a  core  of  sound 


CUSTOM  153 

reason  in  the  study  of  custom  as  one  of  the 
sources  of  law.  Even  highly  developed 
systems  do  not  pretend  to  fix  every  particular 
of  legal  arrangements  by  central  agencies, 
but  leave  a  considerable  margin  in  the  adjust- 
ment of  local  interests  not  only  for  bye-laws, 
but  also  for  traditional  customs.  Readers  of 
Mr.  Eden  Phill potts'  interesting  novel,  The 
Portreeve,  will  remember  the  description  of  the 
antique  customs  of  the  Duchy  of  Cornwall 
which  govern  pastoral  pursuits  on  Dartmoor. 
Moor-men  who  possess  Venville  Rights  are 
entitled  to  depasture  their  beasts  on  the 
common  of  the  Moor ;  and  in  order  to  insure 
that  these  rights  are  not  arrogated  by  "  for- 
eigners," the  curious  ceremony  of  the  colt- 
drift  is  performed.  The  appointed  day  for 
the  drift  is  kept  a  secret,  so  that  the  "  for- 
eigners "  may  be  taken  unawares  and  fined  for 
their  presumption  ;  and  when  the  time  comes, 
all  the  ponies  on  the  common  are  "  rounded 
up  "  into  the  pound,  and  there  marked  for 
future  identification.  The  ceremony  is  the 
more  interesting  because  it  probably  goes 
back  to  practices  even  more  ancient  than  the 
feudal  period — in  any  case  unconnected  with 
manorial  arrangements.  A  great  deal,  too, 
of  the  law  of  copyhold  is  based  simply  on 


154         COMMON-SENSE   IN   LAW 

manorial  custom  :  although  under  the  Copy- 
hold Act,  1894,  this  form  of  tenure  is  subject 
to  compulsory  enfranchisement,  and  there  is 
consequently  a  tendency  for  it  to  disappear, 
yet  so  long  as  it  continues  in  existence,  there 
are  many  points  connected  with  individual 
estates  which  are  referable  only  to  the  "  cus- 
tom of  the  manor  "  :  and  thus  the  usages  of 
a  feudal  society  are  often  of  the  highest 
importance  to  the  rights  of  individuals  in  the 
twentieth  century. 

3.  It  must  not  be  supposed  that  custom  is 
a  valid  source  of  English  law  merely  because 
it  has  in  fact  been  recognized  and  acted  upon. 
Before  it  can  become  part  of  the  law  of  the 
land  it  has  first  to  pass  certain  judicial  tests. 
Thus  before  a  custom  can  have  validity  in 
law  it  must  be  shown  to  be  both  certain  and 
continuous :  and  besides  these  elementary 
requirements,  it  must  have  an  existence  from 
immemorial  time.  The  period  of  "  legal 
memory  "  is  supposed  in  English  law  to  run 
from  the  accession  of  Richard  I  (1189);  but 
in  practice,  it  is  not  necessary  to  prove  the 
continuous  existence  of  custom  from  that 
time.  The  legal  requirements  in  this  respect 
are  well  summarized  by  Cockburn,  C.J.,  in 
Dalton  V.   Angus   (1881).     In  that   case  the 


CUSTOM  155 

question  at  issue  concerned  what  is  legally 
termed  the  "  right  of  lateral  support."  The 
general  rule  of  law  is  that  a  man  is  entitled  to 
lateral  support  for  his  land — i.  e.  if  A  and  B 
are  adjoining  landowners,  A  cannot  excavate 
his  own  land  in  such  a  way  as  to  undermine 
B's.  But  this  right  of  support  does  not  in 
general  extend  to  buildings  upon  the  land; 
and  the  question  in  this  case  was  whether  the 
right  might  be  acquired  for  buildings  by 
prescription. 

The  Chief  Justice,  dealing  with  the  history 
of  the  limitations  of  the  legal  prescriptive 
period,  used  certain  expressions  which  apply 
generally  to  the  judicial  interpretation  of 
"  legal  memory."  Having  mentioned  that 
the  Statute  of  Westminster  (1275),  as  applied 
by  the  Courts,  fixed  the  limit  of  the  period 
at  the  accession  of  Richard  I,  he  continued  : 

"  As  might  have  been  foreseen,  as  time 
went  on,  the  limitation  thus  fixed  became 
attended  with  the  inconvenience  arising 
from  the  impossibility  of  carrying  back 
the  proof  of  possession  or  enjoyment  to  a 
period,  which,  after  a  generation  or  two, 
ceased  to  be  within  the  reach  of  evidence. 
But   here  again,  the  legislature  not   inter- 


156         COMMON-SENSE   IN   LAW 

vening,  the  judges  provided  a  remedy  by 
holding  that  if  the  proof  was  carried  back 
as  jar  as  living  memory  would  go,  it  should 
be  presumed  that  the  right  claimed  had 
existed  from  time  of  legal  memory,  that 
is  to  say,  from  the  time  of  Richard  I." 

Again,  in  modern  English  Courts  custom 
must  pass  the  test  of  reasonableness:  that  is 
it  must  be  reasonable  in  its  application  to  the 
circumstances  of  individual  cases.  It  does  not 
follow,  however,  that  because  a  custom  in  one 
particular  locality  runs  counter  to  a  general  rule 
of  common  law,  it  will  therefore  be  held  to 
be  unreasonable.  In  Wigglesworth  v.  Dallison 
(1778)  the  plaintiff  was  a  leaseholder  and 
the  defendant  his  landlord.  After  the  plain- 
tiff's lease  had  expired,  the  defendant  entered 
upon  the  land  and  took  away  the  grooving 
crop  :  whereupon  the  leaseholder  brought  an 
action  of  trespass.  The  defendant  relied  on 
the  contention  that  the  land  was  his  property 
in  freehold,  and  that  after  the  lease  had 
expired  he  had  a  right  to  resume  possession 
and  take  the  growing  crop,  since  it  was  a 
general  rule  of  law  that  a  tenant  could  not 
claim  a  crop  which  was  sown  by  him  before 
the  determination  of  his  lease,  and  which  he 


CUSTOM  157 

knew  would  be  ripe  for  cutting  after  the 
lease  had  expired.  The  plaintiff,  however, 
set  up  as  against  this  general  rule  a  local 
custom  that  the  tenant  should  take  the 
"  way-going "  crop.  The  Court  found  this 
custom  proved,  and  Lord  Mansfield  said  : 
"  We  have  thought  of  this  case,  and  we  are 
all  of  opinion  that  the  custom  is  good.  It 
is  just,  for  he  who  sows  ought  to  reap,  and 
it  is  for  the  benefit  and  encouragement  of 
agriculture.  It  is,  indeed,  against  the  general 
rule  of  law  concerning  emblements  {i.  e. 
growing  crops),  which  are  not  allowed  to 
tenants  who  know  when  their  term  is  to 
cease,  because  it  is  held  to  be  their  fault  or 
folly  to  have  sown,  when  they  knew  their 
interest  would  expire  before  they  could  reap. 
But  the  custom  of  a  particular  place  may 
rectify  what  otherwise  would  be  imprudence 
or  folly." 

On  the  other  hand,  a  custom  which  can  be 
shown  to  be  of  great  antiquity  will  some- 
times be  repudiated  by  the  Courts  if  its 
rigid  application  to  modern  circumstances 
would  be  so  harsh  and  inconvenient  that  it 
would  be  unreasonable  to  enforce  it.  This 
point  is  suggested  by  the  fact  that,  in  spite 
of  all  their  reverence  for  ancient  usages  and 


158         COMMON-SENSE   IN   LAW 

forms,  English  Courts  find  it  necessary  not  to 
yield  to  custom  on  purely  formal  grounds. 
Things  of  immemorial  gro^vth  may  be  tainted 
by  very  backward  conceptions  of  right  and 
of  public  duty.  In  MeHens  v.  Hill  (1901), 
Mertens  sued,  as  lord  of  the  manor  and  soke  of 
Rothley,  which  had  belonged  to  King  Edward 
the  Confessor  and  William  the  Conqueror,  to 
recover  from  defendant  a  customary  fine  of 
one  shilling  in  the  pound  in  respect  of  a  piece 
of  land  recently  conveyed  to  him,  and  alleged 
to  be  within  the  ambit  of  the  manor  and  soke. 
Rolls  of  courts  in  the  possession  of  the  lord  of 
the  manor,  and  dating  from  1575,  were  pro- 
duced. A  manorial  custom  in  a  manor  of 
ancient  demesne  to  exact  a  fine  on  alienation 
to  a  foreigner  was  held  bad,  under  the  Statute 
Qida  Emptores  (1290)  and  on  other  grounds, 
as  being  a  restriction  on  the  right  of  a  freeman 
to  alienate.  The  Court  was  clearly  led  to  its 
decision  by  the  view  that  it  would  be  un- 
reasonable and  unjust  to  keep  up  the  anti- 
quated customs  which  prevailed  for  centuries 
in  manors  of  ancient  demesne  in  respect  of  the 
alienation  of  land.  For  modern  lawyers,  such 
rates  and  fines  as  were  inflicted  on  the  free- 
holders of  the  soke  of  Rothley  were  absurd, 
and  it  is  in  this  conflict  of  the  modern  principle 


CUSTOM  159 

of  free  trade  with  feudal  customs  that  the 
real  reason  for  the  decision  must  be  sought. 
The  appeal  to  the  Statute  Quia  Emptores  was, 
in  fact,  a  historical  misapprehension ;  this 
enactment  was  never  meant  to  regulate  the 
sale  of  land  within  such  an  estate  as  the  soke 
of  Rothley,  and  as  a  matter  of  fact  fmes  on 
alienation  were  levied  in  different  ways  for 
many  centuries  after  the  statute  had  been 
passed.  But  the  objection  to  the  custom, 
though  it  may  have  been  bad  from  a  historical 
point  of  view,  was  a  weighty  one  from  the 
point  of  view  of  modern  legal  and  economic 
principles. 

4.  But  it  is  clear  that  if  custom  has  once 
been  legally  recognized,  it  cannot  be  judged 
by  modern  standards  alone.  To  some  extent 
ancient  standards  will  have  to  be  recognized 
even  in  modern  surroundings  :  and  it  will 
sometimes  happen  that  although  a  custom 
has  quite  lost  its  original  significance,  it  will 
still  be  upheld  in  modern  times.  Certain 
customs  connected  with  land-tenures  may 
have  been  amply  justified  by  feudal  conditions, 
but  will  be  quite  incongruous  in  a  modern 
civilization  :  yet  they  may  be  enforced  by  the 
Courts.  Copyhold  tenure  affords  a  curious 
example  in  the  custom  of  heriot.     In  mediaeval 


160         COMMON-SENSE    IN   LAW 

times  it  was  usual  for  a  lord  to  provide 
the  outfit  for  his  tenant ;  for  military  fol- 
lowers, this  outfit  would  be  war-equipment, 
part  of  which  fell  back  to  the  lord  as  a  heriot 
at  the  death  of  the  tenant.  For  peasants,  the 
equipment  would  be  agricultural,  and  a  similar 
heriot  was  exacted  in  the  shape  of  the  best 
beast  (or  best  chattel).  On  copyhold  lands 
similar  customs  are  recognized  even  in  modern 
times.  In  itself  the  custom  of  heriot  certainly 
cannot  be  justified  by  reasonable  considera- 
tions nowadays  :  indeed,  as  long  ago  as  1709 
it  was  declared  by  a  Lord  Chancellor  ^  to  be, 
from  the  point  of  view  of  equity,  "  unreason- 
able, the  loss  a  family  sustains  thereby  being 
aggravated  "  :  and  yet  customs  of  heriot  are 
often  upheld  at  the  present  time,  chiefly  on 
copyhold  tenements.  Thus  in  Harrison  v. 
Powell  (1894)  the  defendant  was  lord  of  a 
manor,  and  on  the  death  of  a  certain  tenant, 
entered  on  the  land,  which  was  in  occupation 
of  the  deceased's  executors,  and  marked  two 
horses  and  a  cow  :  and  later  on,  again  entered, 
took  away  the  beasts,  and  sold  them.  The 
executors  claimed  damages  for  trespass  and 
for  seizure  of  the  cattle.  The  records  of  the 
manor  were  carefully  examined;  the  Court 
^  Wirty  V.  Pemberton. 


CUSTOM  161 

came  to  the  conclusion  that  a  heriot  custom 
was  proved,  and  that  the  defendant  was 
therefore  perfectly  entitled  to  enter  and  take 
the  beasts. 

English  Courts  have  not  only  to  consider 
the  operation  of  ancient  customs  in  modern 
conditions,  but  also  to  understand,  and  often 
to  respect,  the  customs  of  other  civilizations. 
It  would  be  the  grossest  travesty  of  justice  if 
English  judges,  in  considering  the  custom  of 
(say)  India  or  Burmah,  were  guided  solely  by 
European  conceptions  of  right  and  wrong. 
The  jurisprudence  of  the  Judicial  Committee 
of  the  Privy  Council  affords  many  signal 
instances  of  a  respectful  treatment  of  foreign 
popular  customs. 

In  a  case  of  1906 — Musammat  Lali  v.  Murli 
Dhar — the  question  at  issue  was  one  of  dis- 
puted succession.  The  respondent  claimed 
the  property  not  only  as  the  adopted  son  of 
the  deceased,  but  under  a  will  contained  in  a 
wajib-ul-arz.  This  word  means  literally  "  that 
which  it  is  necessary  to  record  or  state."  It 
is  really  a  "  record  of  rights,"  which,  besides 
registering  the  rights  of  individuals  in  various 
proprietary  or  possessory  relations,  records 
many  village  customs — e.  g.  in  regard  to 
market-tolls,  local  usages  connected  with  land- 

L 


162         COMMON-SENSE   IN   LAW 

tenure — in  fact,  all  matters  relating  to  village 
administration.  It  was  highly  important  in 
the  case  that  the  Court  should  consider  the 
nature  and  effect  of  the  document,  and  it  was 
admitted  that  as  a  record  of  purely  customary 
institutions,  the  wajih-ul-arz  was  legal  evidence 
which  an  English  Court  was  bound  to  consider. 
The  peculiarity  in  such  cases  is  that  European 
lawyers  have  to  make  an  effort  to  assume  a 
point  of  view  which  is  foreign  to  their  own 
minds,  but  which  has  directed  the  thought  of 
the  native  parties.  For  example,  in  a  case 
before  the  Privy  Council  in  1906 — Kannepalli 
Suryanarayana  v.  Pucha  Venkataramana — & 
husband  had  authorized  his  wife  to  adopt  to 
him  a  son.  Twenty-four  years  after  her  hus- 
band's death,  she  adopted  a  boy,  but  the  child 
died  a  few  months  afterwards.  Thirteen  years 
later  she  adopted  another  son.  The  question 
was  whether  this  second  adoption  was  valid. 
Clearly  it  was  contrary  to  the  most  elementary 
English  legal  and  social  ideas ;  but  the  two 
objects  of  the  deceased  husband — "  to  secure 
spiritual  benefit  to  himself  and  to  continue 
his  line  " — were  held  "  meritorious  in  the  view 
of  Hindu  law,"  and  therefore  deserving  of 
recognition  by  an  English  Court. 

5.  In  order  to  study  the  operation  of  custom 


CUSTOM  163 

in  all  its  significance  and  bearings,  it  is  best 
to  turn  to  earlier  periods  of  legal  history.  By 
observing  the  peculiarities  of  the  process  of 
law-making  during  these  earlier  periods  we 
obtain  clues  which  may  be  found  valuable 
even  in  regard  to  later  developments.  The 
first  thing  to  be  noticed  is  that  legal  customs 
often  arise  independently  of  any  litigation, 
by  the  gro\\i;h  of  definite  views  as  to  rights 
and  duties.  Familial  authority  was  regulated 
chiefly  by  such  views  as  were  adapted  to 
economic  requirements  and  social  conditions. 
Monogamy,  polygamy,  polyandry,  group 
marriage,  began  as  usages  of  daily  life  before 
they  took  shape  as  legal  customs.  So  did 
marital  authority,  emancipation,  succession 
to  goods  and  succession  to  land.  The  history 
of  intestate  succession  is  rich  in  examples  of 
interesting  changes  in  the  formulation  of  rules, 
and  all  these  changes  were  originally  produced 
by  the  operation  of  non- litigious  custom. 
Whether  all  the  children  had  to  share  in  the 
succession  of  the  father,  or  whether  sons 
inherited  land  to  the  exclusion  of  daughters, 
or  whether  the  eldest  or  the  youngest  came  to 
the  hearth  and  landed  estate :  these  and  simi- 
lar rules  were  certainly  not  commands  of 
authorit}',  nor  rules  primarily  evolved  in  the 


164         COMMON-SENSE   IN   LAW 

course  of  trials,  but  practical  arrangements 
of  the  interested  persons,  approved  by  the 
opinion  of  their  neighbours  and  gradually 
ripening  into  customary  rules  which  could  be 
appealed  to  in  case  of  litigation.  The  fact  is 
worth  notice,  because  the  rules  in  question  are 
by  no  means  unimportant  and  certainly 
cannot  be  accounted  for  on  the  Austinian 
theory  of  State  command.  In  the  same  way 
the  English  law  of  real  property  grew  up  with 
constant  reference  to  important  rules  created 
by  the  usage  of  the  country-side,  e.g.  rules  as  to 
cultivation  of  open  fields,  the  use  of  meadows 
and  pastures,  the  delimitation  of  boundaries, 
and  so  forth.  Or  take  the  law  of  persons,  and 
notice  the  growth  of  rules  as  to  serfdom  and 
gentle  birth. 

It  is  impossible  to  construe  customary  law 
purely  on  the  principle  of  instinctive  or 
conscious  repetition  of  the  same  rules,  as  some 
jurists  have  attempted  to  do,  or  to  explain  it 
by  prescription,  as  the  doctors  of  Canon  Law 
were  fond  of  doing ;  both  elements  contribute 
greatly  to  uphold  customary  rules  once  they 
are  formed,  but  they  cannot  account  for  their 
origin  and  growth.  Mechanical  repetition 
may  serve  to  explain  the  formation  of  usages — 
e.  g.  rights  of  way — but  how  does  it  apply  in 


CUSTOM  165 

the  case  of  fundamental  legal  institutions  like 
marriage,  succession,  contract,  etc.  ?  Obvi- 
ously it  does  not  :  and  we  are  thus  driven  to 
assume,  in  spite  of  the  obscurity  with  which 
such  early  institutions  are  necessarily  sur- 
rounded, that  there  was  a  conscious  activity 
of  elders,  priests,  judges,  witans,  or  experts 
of  some  kind  directed  towards  the  discovery 
and  declaration  of  what  is  right  and  just  :  a 
process  of  discovery  which,  however  mystically 
imagined  and  solemnly  presented,  must  really 
have  consisted  in  the  formulation  of  rules  as 
emergency  required  in  accordance  with  popular 
conceptions  of  right.  Fortunately  we  are 
not  left  without  direct  evidence  as  to  this 
process  of  discovery  and  declaration.  It  is 
expressly  described  in  Germanic  legal  history 
as  the  "  finding  and  manifestation  of  law  " 
{das  Recht  finden,  das  Recht  weisen).  The 
assessors  of  a  Frankish  tribunal  had  to 
"  find  the  law  "  for  parties  who  had  challenged 
them  by  a  solemn  formula  {tangano)  to  do  so. 
The  Schoffen  of  mediaeval  German  law  had  to 
formulate  decisions  (Urtheile)  at  every  step 
of  a  trial,  in  order  to  solve  the  string  of 
questions  of  law  and  fact  which  were  put  to 
them.  The  lagmen  of  Scandinavian  courts, 
who  at  a  later  period  were  not  unknown  in 


IGC         COMMON-SENSE   IN   LAW 

the  Danish  districts  of  England,  also  held  the 
position  of  judicial  authorities  declaring  the 
law.  What  their  functions  were  in  this 
respect  may  be  gathered  from  the  fact  that 
the  ancient  provincial  laws  of  Sweden  con- 
sisted of  pronouncements  by  these  authorities. 
This  institution  assumed  a  most  peculiar  shape 
in  Iceland,  where  we  find  a  kind  of  judicial 
professor  (loegsoegumadhr)  who  delivered  be- 
fore the  general  assembly  consecutive  courses 
of  instruction  on  the  law  to  be  applied  in 
Iceland. 

In  Saxon  England  the  wise-men  (witan)  in 
the  county  courts  and  in  the  central  assembly 
of  the  kingdoms  held  similar  functions,  and 
later  on  the  mediaeval  Parliament  came  to 
be  considered  as  the  chief  organ  for  the 
declaration  of  law. 

6.  One  consequence  of  the  organic  character 
of  this  process  of  law-making  is  shown  in  the 
fact  that  it  may  still  be  resorted  to  in  our  own 
times  if  there  arises  the  problem  of  regenerat- 
ing a  given  system  by  appeal  to  national 
traditions  and  popular  ideas,  as  opposed  to 
foreign  infiuence  and  artificial  enactments. 
A  striking  instance  of  this  kind  is  presented 
by  German  law,  which  for  centuries  was 
flooded  by  the  conceptions  of  a  professional 


CUSTOM  167 

jurisprudence  reared  on  Roman  law  and  rely- 
ing on  Justinian's  Corpus  Juris  as  the  principal 
source  of  legal  rules.  The  revival  of  German- 
istic  jurisprudence  which  we  have  witnessed 
within  the  last  fifty  years  is  connected  with 
an  ardent  study  of  legal  antiquities  and  of 
customary  law.  This  remarkable  process 
found  expression  in  the  writings  of  numerous 
lawyers  and  historians  of  the  law  who  formed 
the  group  of  so-called  Germanists.  It  reacted 
also  on  the  compilation  of  the  new  German 
Code.  The  first  draft  of  this  Statute  book 
was  elaborated  by  a  commission  composed 
chiefly  of  jurists  brought  up  on  Roman  law  : 
but  when  this  draft  was  published,  it  called 
forth  the  violent  opposition  and  criticisms  of 
the  Germanistic  school.  Consequently,  it  had 
to  be  recast,  and  in  its  present  shape  it  affords 
a  curious  compromise  between  conflicting 
tendencies.  It  would  be  impossible  to  review 
the  numerous  and  important  peculiarities 
imported  into  it  by  the  study  of  German  legal 
history  and  custom,  but  I  should  like  to  point 
out  a  few  instances  in  which  the  influence  of 
Germanistic  ideas  is  especially  conspicuous. 
The  doctrine  of  ownership  is  conceived  in  a 
much  less  absolute  and  abstract  manner  than 
in  the  sources   of   Roman   Law:    the   more 


168         COMMON-SENSE   IN   LAW 

concrete  view  of  property  right  is  derived  to 
a  great  extent  from  the  historical  notion  of 
Germanistic  possession  (Gewere),  which  may- 
be briefly  characterized  as  a  presumption  of 
title,  in  contrast  with  the  sharp  opposition 
between  property  and  possession  obtaining  in 
Roman  Law.  Again,  the  doctrine  of  corpora- 
tions, instead  of  starting  from  the  fiction  of 
unity,  is  developed  on  the  basis  of  a  dualism 
between  the  life  of  the  union  and  of  its  com- 
ponent members.  As  regards  the  acquisition 
of  property,  the  chief  stress  is  laid  on  "  good 
faith,"  and  property  once  acquired  in  good 
faith  is  protected  even  against  the  claim  of  a 
rightful  owner.  Such  are  a  few  of  the  features 
of  Germanistic  legal  theory,  which  may  be 
paralleled  by  many  others. 

In  fine,  we  may  say  that  customary  law 
appears  as  the  judge-made  law  of  periods 
when  the  judges  are  still  intimately  connected 
with  the  people  they  represent,  and  feel  bound 
to  declare  popular  legal  lore  rather  than  to 
supply  links  in  a  system  of  learning. 


CHAPTER  VII 

JUDICIAL   PRECEDENTS 

1.  The  force  of  judicial  opinion,  which 
asserts  itself  clearly  in  the  working  of  promul- 
gated law  and  of  custom,  acts  as  an  indepen- 
dent source  of  law  when  there  is  no  legislation 
bearing  on  particular  points  which  arise  in 
practice.  In  countries  where  codified  and 
enacted  law  prevails,  such  points  will  occur 
on  account  of  the  gaps  left  by  statutes  and  the 
clauses  of  a  code.  But  there  are  countries 
in  which  statutes  cover  only  part  of  the 
ground,  while  most  of  the  current  litigation 
is  met  by  decisions  of  the  Courts  based  on  the 
considered  opinion  of  judges.  I  need  not 
remind  my  readers  that  Anglo-American 
common  law  is  pre-eminently  judge-made 
law.  Such  law  may  also  be  called  case-law, 
because  it  is  formulated  not  in  general  pro- 
spective enactments,  but  in  pronouncements 
called  forth  by  particular  cases.  This  process 
of  formulation  involves  several  characteristic 

consequences. 

169 


170         COMMON-SENSE   IN   LAW 

To  begin  with,  no  sharp  distinction  can 
be  drawn  between  customary  and  common 
law.  The  latter  is  historically  the  ordinary 
and  customary  law  of  the  kingdom,  while 
the  domain  of  custom  proper  is  more  or  less 
restricted  to  the  practice  of  local  and  popu- 
lar Courts.  Gavelkind  succession — i.e.  equal 
division  of  inheritance  in  land  among  sons — 
was  the  custom  of  Kent  and  of  some  other 
localities,  while  primogeniture  and  the  taking 
of  inheritance  by  daughters  as  joint  co-heirs 
was  reputed  to  be  the  common  law  of  England 
as  regards  military  tenures.  This  latter  cus- 
tom, however,  only  became  part  of  the  common 
law  because  it  had  been  declared  and  ap- 
proved by  the  Courts  of  the  kingdom  :  no 
one  could  have  said  when  and  by  whom  it  had 
been  established  in  the  first  instance.  It  was 
deemed  to  be  derived  from  customary  practice 
as  to  fiefs  and  sergeanties ;  it  had  been  used 
more  or  less  in  all  the  feudal  Courts :  but  its 
actual  formulation  as  a  rule  of  law  was  the 
work  of  the  King's  judges.  In  this  way  many 
of  the  fundamental  principles  of  common  law 
may  be  traced  to  mediaeval  custom. 

But  if  in  this  way  legal  origins  were  some- 
times hidden  in  the  twilight  of  feudal  and 
Anglo-Saxon  institutions,  in  other  instances 


JUDICIAL   PRECEDENTS         171 

common  law  principles  were  asserted  spon- 
taneously on  important  occasions  by  the 
Bench  of  a  High  Court  on  the  strength  of 
general  notions  of  justice  or  of  some  doctrine 
suggested  perhaps  by  foreign  learning.  For 
example  :  originally  there  was  no  action  to 
protect  a  leaseholder  against  ejectment  by  his 
landlord  :  but  about  1235  the  King's  Bench, 
on  the  initiative  of  William  Raleigh,  began  to 
entertain  actions  brought  by  tenants  for  a 
term  of  years  against  landowners  who  had 
ejected  them  before  the  completion  of  their 
term.  Bracton,  in  his  famous  treatise  on  the 
Laws  of  England,  was  quite  right  in  comparing 
this  new  departure  of  judge-made  2aw  with  the 
great  reform  of  Henry  II's  which  provided  the 
freeholder  with  remedies  against  dispossession. 
It  is  evident  that  Raleigh's  doctrine  was  not 
prompted  by  precedent,  but  suggested  by  the 
necessities  of  justice  and  possibly  by  the  study 
of  Civil  Law. 

The  beginnings  of  common  law  have  neces- 
sarily to  be  traced  to  those  pronouncements 
in  which  the  opinion  of  judges  was  as  yet 
unfettered  by  the  weight  of  previous  decisions, 
and  the  Year  Books  show  conclusively  that  in 
the  early  stages  of  legal  evolution  principles 
of  law  were  declared  and  developed  with  a 


172         COMMON-SENSE   IN    LAW 

great  deal  of  independence,  and  there  were 
many  contradictions  in  the  views  expressed 
by  leading  judges  on  different  occasions.  In 
the  fifteenth  century,  for  instance,  the  au- 
thorities of  the  Bench  wavered  for  a  long 
time  before  they  settled  once  for  all  that  if 
a  person  promise  to  perform  certain  acts,  and 
if  the  promise  is  made  in  view  of  a  benefit 
to  himself,  or  involves  a  loss  to  the  promisee, 
then  he  is  liable  to  damages  not  only  if  he 
performs  them  badly,  but  also  if  he  fails 
altogether  to  perform  them. 

Gradually,  however,  the  search  for  pre- 
cedents assumes  great  importance.  In  the 
absence  of  a  statute,  a  Court  before  whom  a 
dispute  is  tried  informs  itself  whether  similar 
cases  have  been  decided  before,  and  if  so,  how 
the  decision  has  gone.  If  exactly  similar 
cases  have  occurred  before,  the  judges  in 
subsequent  cases  have  an  easy  task.  They 
usually  appeal  to  the  former  decision  and 
frame  their  own  on  its  pattern.  In  some 
instances  they  are  even  obliged  to  do  so.  In 
England,  in  particular,  a  certain  hierarchy  of 
the  Courts  makes  it  impossible  for  a  lower 
Court  to  deviate  from  the  course  indicated  by 
a  decision  of  a  superior  Court.  A  County 
Court  is  bound  to  accept  as  law  a  decision  of  the 


JUDICIAL   PRECEDENTS  173 

High  Court;  the  High  Court  is  bound  to 
follow  decisions  of  the  Court  of  Appeal,  and 
the  Court  of  Appeal  cannot  overrule  a  decision 
of  the  House  of  Lords,  which  is  the  highest 
judicial  authority  in  the  kingdom  :  and  the 
House  of  Lords  cannot  overrule  its  own 
decisions.  When  Courts  stand  on  the  same 
level,  or  when  the  precedent  has  to  be  drawn 
from  the  jurisdiction  of  an  inferior  Court,  such 
precedents  are  not  absolutely  binding,  though 
they  are  generally  treated  with  respect. 

Circumstances  may  arise  in  which  it  is 
necessary  to  restrict  or  even  overrule  a 
previous  decision.  The  following  case  pro- 
vides an  example,  and  serves  to  show  how 
decisively  the  judgment  of  an  authoritative 
Court  will  sometimes  be  overruled.  In  Rex 
V.  Russell,  the  defendant,  in  order  to  facilitate 
his  business,  had  erected  some  staiths  in 
the  river  Tyne,  and  the  question  in  the 
case  was  whether  they  were  an  impediment 
to  navigation.  Mr.  Justice  Bayley,  in  charg- 
ing the  jury,  took  the  view  that  the  erection 
did  not  merely  give  a  private  advantage 
to  the  defendant  in  the  way  of  his  business 
but  was  a  public  benefit,  inasmuch  as  it 
was  a  means  of  bringing  coals  to  market  at 
a  lower  price  and  in  better  condition  than 


174         COMMON-SENSE   IN   LAW 

would  otherwise  have  been  possible  :  and  this 
so-called  public  benefit  would,  in  the  opinion 
of  the  learned  judge,  countervail  any  slight 
public  inconvenience  which  might  arise  from 
the  presence  of  the  obstruction  in  the  river. 
This  view  was  afterwards  upheld  by  a  Court 
consisting    of    the   trial    judge    (Mr.    Justice 
Bayley),  Mr.  Justice  Holroyd,  and  Lord  Chief 
Justice  Tenterden.     In  1873  similar  circum- 
stances arose  in  Attorney-General  v.    Terry, 
where  the  defendant  enclosed  part  of  the  river 
Stour,   and    proposed   to  erect  a   scaffolding 
which,  it  was  contended,  would  be  a  public 
obstruction  to  navigation.      Counsel  for  the 
defendant  relied  on  Rex  v.  Russell,  admitting 
that   a  slight   obstruction  would  be  created, 
but  urging  that  this  was  counterbalanced  by 
the  "  public  benefit  "  to  trade.     The  Court, 
however,  refused  to  follow  the  previous  case. 
Sir  George  Jessel,  Master  of  the  Rolls,  held 
that  in  such  cases  "  the  public  "  must  be  con- 
sidered not  as  the  public  at  large,  but  as  the 
public  {i.  e.  the  majority  of  individuals)  of  a 
particular  -place :    and  it  was  too  remote  a 
benefit  to  say  that  the  encouragement  of  a 
single  individual's  trade  was  a  benefit  to  "  the 
public."     With  regard  to  Rex  v.  Russell,  he 
made    this    emphatic    statement  :     "  Now    I 


JUDICIAL   PRECEDENTS  175 

must  say  that  Rex  v.  Russell  in  my  opinion  is 
not  law,  and  it  is  right  to  say  so  in  the  clearest 
terms,  because  it  is  not  well  that  cases  should 
continue  to  be  cited  which  have  been  virtually 
overruled,  although  judges  have  not  said  so 
in  express  terms." 

It  sometimes  happens  that,  for  somewhat 
inscrutable  reasons,  a  more  or  less  irrational 
doctrine  will  be  set  up  by  a  superior  Court, 
and  will  continue  to  be  binding  authority  on 
inferior  Courts  until  some  tribunal  of  high 
standing  definitely  pronounces  against  it. 
One  of  the  most  interesting  examples  of  this 
kind  is  the  so-called  "  Doctrine  of  Identifica- 
tion." It  used  to  be  held  that  if  a  man  were 
travelling  in  some  conveyance,  and  an  accident 
occurred  through  the  negligence  of  another, 
and  the  passenger  was  injured  thereby  :  and  if 
the  person  controlling  the  conveyance  in  which 
the  passenger  was  travelling  had  been  guilty 
of  contributory  negligence:  then  the  passen- 
ger must  be  considered  as  so  far  "  identified  " 
with  the  driver  that  he  could  not  claim 
damages  against  the  other  negligent  person. 
The  leading  authority  for  this  doctrine  was 
Thorogood  v.  Bryan,  decided  in  1849.  In  that 
case,  a  claim  was  made  by  a  widow  under 
Lord  Campbell's  Act  :  her  husband  had  been 


176         COMMON-SENSE   IN   LAW 

travelling  in  an  omnibus,  and  when  stepping 
off  it  had  been  knocked  down  and  killed  by 
another  omnibus.  It  was  shown  that  both 
drivers  were  at  fault :  and  the  widow's  claim 
was  refused  on  the  ground  stated  by  Mr.  Justice 
Maule,  that  "the  deceased  must  be  considered 
as  identified  with  the  driver  of  the  omnibus  in 
which  he  voluntarily  became  a  passenger,  and 
the  negligence  of  the  driver  was  the  negligence 
of  the  deceased."  It  does  not  require  much 
reflection  to  show  that  this  doctrine  is  con- 
trary both  to  justice  and  to  common  sense  : 
it  was  frequently  criticized  by  judges  :  yet 
it  remained  binding  on  inferior  Courts,  until 
in  1887  the  Court  of  Appeal  emphatically 
overruled  it  in  the  case  of  The  Bernina,  the 
opinion  of  the  Court  being  summed  up  in  the 
unequivocal  words  of  Lord  Justice  Lopes : 
"The  theory  ...  is,  in  my  opinion,  a  fallacy 
and  a  fiction,  contrary  to  sound  law  and 
contrary  to  every  principle  of  justice." 

Thus  former  judgments  are  from  time  to 
time  overruled  by  superior  and  co-ordinate 
Courts ;  but  this  is  done  with  the  greatest  cau- 
tion in  England,  because  it  is  recognized  that 
it  is  not  only  important  to  find  the  right 
solutions  of  legal  problems,  but  also  to  keep 
to  solutions  once  obtained  in  order  not  to 


JUDICIAL   PRECEDENTS  177 

confuse  the  public  and  the  legal  profession. 
Indeed  it  has  been  said  with  some  exaggera- 
tion that  in  law  certainty  is  more  important 
than  justice. 

It  may  be  added,  however,  that  the  doctrine 
as  to  the  binding  force  of  precedents  is  not 
a  necessary  consequence  of  the  theory  of  case- 
law.  It  does  not  obtain,  e.g.  in  the  juris- 
prudence of  the  Privy  Council  in  England  and 
of  the  Supreme  Court  in  the  United  States. 
As  we  have  already  seen  (p.  143)  the  first  de- 
cision as  to  the  Legal  Tender  Act  was  reversed 
later  on.  Besides,  even  in  English  conunon 
law  the  systematic  use  of  precedents  is  a  com- 
paratively late  development,  and  as  late  as 
the  nineteenth  century,  the  keystone  of  the 
whole  structure — ^the  uniformity  of  practice 
in  the  House  of  Lords — was  not  yet  estab- 
lished. About  1850  such  legal  authorities 
as  Lord  St.  Leonards  and  Lord  Campbell  held 
opposite  views  on  the  matter.^  The  first  said, 
in  Bright  v.  Ilutton  (1852) : 

"Although  you  are  bound  by  your  own 
decisions  as  much  as  any  Court  would  be 
bound,  so  that  you  could  not  reverse  your 
decision  in  a  particular  case,  yet  you  are 

^  See  Pollock,  First  Book  of  Jurisprudence, 

M 


178         COMMON-SENSE    IN   LAW 

not  bound  by  any  rule  of  law  you  may  lay 
down,  if  upon  subsequent  occasion  you  find 
reason  to  differ  from  that  rule ;  that  is,  that 
this  court,  like  every  court  of  justice,  pos- 
sesses an  inherent  power  to  correct  an  error 
into  which  it  may  have  fallen." 

This  was  contested  by  Lord  Campbell,  who 
often  had  occasion  to  assert  what  became  the 
received  view  on  the  subject. 

Still,  it  is  only  under  this  system  of  binding 
precedents  that  the  necessary  continuity  and 
certainty  inherent  in  the  conception  of  law 
can  be  achieved  on  the  basis  of  judicial 
decisions. 

2.  Cases  are  seldom  exactly  similar.  Cer- 
tain differences  in  the  circumstances  may  make 
it  a  matter  of  difficulty  to  apply  precisely  an 
existing  standard.  When  a  Court  refers  to 
precedent,  it  generally  has  to  use  reasoning  in 
order  to  show  that  in  spite  of  minor  differences 
a  principle  stated  in  a  former  case  can  be 
applied  to  a  later  one;  and  sometimes  this 
can  only  be  done  by  means  of  rather  compli- 
cated argument.  Such  instances  bring  into 
strong  relief  the  fact  that  what  is  important 
in  the  precedent  is  not  the  actual  decision, 
but  the  principle  on  which  it  is  grounded,  or. 


JUDICIAL   PRECEDENTS         179 

as  it  is  technically  called,  the  ratio  decidendi. 
This  may  either  be  explicitly  stated  by  the 
Court  in  deciding  the  case,  or  may  have  to  be 
discovered  by  close  examination  of  the  judg- 
ment. In  either  case,  it  will  be  regarded  as 
authoritative  in  subsequent  cases.  It  may 
be  said,  therefore,  that  a  judge  who  formu- 
lates a  principle  of  decision  in  a  dispute,  if  he 
does  not  simply  repeat  what  has  been  estab- 
lished by  a  predecessor  on  a  similar  occasion, 
formulates  a  rule  of  law. 

A  peculiar  difficulty  in  English  and  Ameri- 
can cases  arises  from  the  fact  that  the  decision 
is  formulated  by  each  member  of  the  Court 
separately,  and  not  by  the  Court  as  a  whole. 
Therefore,  although  the  concrete  question  at 
issue  is  always  definitely  decided,  the  principle 
of  the  decision  may  be  differently  expressed,, 
and  even  differently  conceived,  by  the  various 
members  of  the  Court.  Let  us  take  an  ex- 
ample from  a  recent  and  a  famous  case.^  It 
is  well  known  that  Osborne,  a  member  of  the 
Amalgamated  Society  of  Railway  ServantSr 
refused  to  contribute  to  the  political  funds 
collected  by  this  trade  union,  as  well  as  by 
others,  for  the  maintainance  of  the  Labour 

^  Osborne  v.  Amalgamated  Society  of  Railway  Servants 
(1910). 


180         COMMON-SENSE   IN   LAW 

Party  in  Parliament.  When  the  case  came 
up  in  due  course  before  the  House  of  Lords, 
such  levies  for  political  purposes  by  trade 
unions  were  declared  illegal  :  but  the  reason 
for  this  declaration  was  not  formulated 
definitely  by  the  Court,  and  as  a  matter  of 
fact,  the  five  lords  who  sat  in  this  case  came 
to  the  ultimate  conclusion  on  different  grounds. 
Two,  Lord  Halsbury  and  Lord  Macnaghten, 
clearly  based  their  decision  on  the  view  that 
the  objects  of  a  trade  union  are  restricted 
to  the  three  mentioned  in  clause  16  of  the 
Trade  Unions  Act  of  1876  :  that  the  political 
pressure  exerted  by  a  trade  union  on  members 
of  Parliament  was  not  among  them,  and 
could  not  be  treated  as  an  incidental  and 
subordinate  aim.  On  the  other  hand.  Lord 
Shaw  and  Lord  James  of  Hereford  expressed 
the  opinion  that  the  above-mentioned  clause 
could  not  be  treated  as  an  exhaustive  enu- 
meration of  the  objects  of  a  trade  union.  In 
their  view,  the  illegality  consisted  in  the 
pledge  imposed  on  members  of  Parliament  to 
follow  a  certain  line  prescribed  by  the  Labour 
Party.  Lord  Atkinson  agreed  in  substance 
with  Lord  Halsbury  and  Lord  Macnaghten  : 
and  if  it  had  been  necessary  to  summarize  the 
considerations  of  the  judges  in  a  single  decision. 


JUDICIAL   PRECEDENTS         181 

there  would  have  been  a  majority  of  three 
against  two  in  regard  to  the  principle  that  the 
action  described  was  beyond  the  powers  of 
the  union  as  formulated  in  the  Act  of  1876. 
As  a  matter  of  fact,  the  decision  of  the  Court 
was  not  reduced  to  such  a  unity  of  principle, 
and  the  different  members  were  left,  in  this 
case  as  in  so  many  others,  to  give  a  varying 
colour  to  their  common  decision.  This  peculi- 
arity of  English  law  makes  it  somewhat  difficult 
to  evolve  the  principles  of  decision  in  many 
cases;  but  of  course  it  does  not  fundamen- 
tally alter  the  process  by  which  such  decisions 
are  arrived  at.  Sometimes,  however,  hard- 
ship is  inflicted  on  litigants,  and  an  unsatis- 
factory and  contradictory  state  of  the  law 
produced,  by  a  division  of  judicial  opinion. 
For  instance,  in  the  case  of  Jolly  v.  Kine 
(1907),  an  important  point  arose  in  connection 
with  certain  ancient  lights  :  in  the  Court  of 
Appeal,  judgment  went  against  the  appellant, 
but  only  by  majority,  Lord  Justice  Romer 
dissenting ;  in  the  House  of  Lords,  the  Court 
consisted  of  four  Lords  only  :  the  Lord  Chan- 
cellor (Lord  Loreburn)  and  Lord  James  of 
Hereford  were  in  favour  of  dismissing  the 
appeal,  while  Lord  Robertson  and  Lord  Atkin- 
son were  for  allowing  it.      In  such  cases  of 


182         COMMON-SENSE   IN   LAW 

equal  division,  the  practice  of  the  Court  is  to 
dismiss  the  appeal  (though  without  costs)  ; 
and  thus  the  appellant  might  not  unreason- 
ably have  said  that  he  had  probably  lost  his 
case  for  no  other  reason  than  that  the  Court 
in  the  House  of  Lords  happened  to  consist  of 
an  even  number  of  members;  and  not  only 
this,  but  a  decision  was  established  under 
these  unsatisfactory  circumstances  which,  if 
the  point  arises  again,  may  be  hard  to  recon- 
cile with  a  very  important  authority  [Colls  v. 
Home  and  Colonial  Stores  (1904)]. 

3.  The  principles  formulated  in  precedents 
correspond  in  a  system  of  case-law  to  the 
clauses  of  a  statute  in  enacted  law.  In  both 
cases  the  problem  for  the  judges  may  be 
compared  to  the  process  of  logical  deduction 
which  leads  to  a  so-called  syllogism — the 
process  of  reasoning  which  is  illustrated  by 
the  well-known  example,  "  All  men  are 
mortal  (major  premise) :  Socrates  is  a  man 
(minor  premise)  :  therefore  Socrates  is  mortal 
(conclusion),"  In  enacted  law,  the  major 
premise  of  the  syllogism  is  given  in  a  statutory 
clause,  and  the  problem  is  to  formulate  the 
minor  premise  from  which  the  conclusion  is 
to  be  drawn — that  is,  to  analyze  the  case  in 
hand  in  such  a  way  as  to  bring  it  under  the 


JUDICIAL   PRECEDENTS         183 

operation  of  the  major  premise  contained  in 
the  clause.  The  process  of  bringing  the 
minor  premise  under  the  major  premise — 
that  is  to  say,  of  bringing  the  particular  facts 
of  a  case  within  a  general  rule — is  technically 
called  subsumption. 

The  application  of  the  Workmen's  Compen- 
sation Act  by  the  Courts  provides  many 
illustrations  of  this  process.  A  major  premise 
is  the  rule  of  the  Act  that  workmen  or  their 
families  are  to  be  compensated  for  accidents 
arising  out  of  and  in  the  course  of  the  employment. 
It  is  not  always  easy  to  fit  the  minor  to  the 
major  premise  in  order  to  reach  the  conclusion 
that  the  employer  is  liable  to  compensate. 

Suppose,  for  example,  that  a  sailor,  while 
returning  to  his  ship  from  the  shore,  falls  from 
the  ladder  at  the  ship's  side  and  is  drowned. 
Do  the  facts  warrant  the  subsumption  of  this 
case  under  the  major  premise  of  the  above- 
mentioned  rule  ?  In  Moore  v.  Manchester 
Liners  (1910)  in  the  House  of  Lords,  three  of 
the  judges  held  that  they  did,  because  "  the 
danger  of  falling  from  a  ladder  which  gave 
the  only  access  to  the  ship  is  incidental  to  the 
service  of  a  seaman,"  and  because  a  sailor 
returning  from  leave  does  so  "in  the  course 
of     his     employment."      Two     authoritative 


184         COMMON-SENSE   IN   LAW 

judges,  Lord  Macnaghten  and  Lord  Mersey, 
were,  however,  of  a  different  opinion,  because 
they  thought  that  the  course  of  employment 
had  been  interrupted  by  the  man  going  ashore 
*'  on  his  own  business." 

To  take  another  example  :  in  the  case  of 
Nisbet  V.  Rayne,  to  which  we  have  already 
referred  (p.  122),  it  was  held  that  the  accident 
arose  "  out  of  and  in  the  course  of  "  the  de- 
ceased man's  employment,  because  a  mur- 
derous attack  was  a  risk  peculiarly  incident 
to  the  duties  of  a  cashier  who  was  in  the  habit 
of  carrying  large  sums  of  money  on  his  person. 
A  later  case  provides  an  interesting  contrast. 
In  Mitchinson  v.  Day  (1913),  a  carter,  seeing 
a  drunken  man  about  to  interfere  with  his 
horse,  warned  him  that  he  might  be  injured 
by  the  animal  :  the  drunken  man  then  turned 
upon  his  would-be  benefactor,  assaulted  and 
killed  him.  The  Court  held  that  though  the 
accident  arose  in  the  course  of  the  deceased's 
employment,  it  did  not,  as  in  the  former  case, 
arise  out  of  it,  for  the  danger  of  assault  by  an 
intoxicated  ruffian  was  in  no  sense  incident 
to  the  calling  of  a  carter.  It  is  further  in- 
teresting to  note,  as  an  example  of  the  force 
of  judicial  interpretation,  that  the  construc- 
tion placed  upon    the  word   "  accident  "   in 


JUDICIAL   PRECEDENTS  185 

Nisbet  V.  Rayne  was  accepted  as  binding 
authority  in  the  later  case,  and  it  was  never 
doubted  tliat  the  assault  and  homicide  con- 
stituted an  "  accident  "  within  the  meaning 
of  the  Act.  Thus  the  case  really  resolved 
itself  into  a  question  of  subsumption. 

The  above  case  may  serve  to  show  how  the 
Courts  bring  the  minor  premise  of  a  particular 
case  under  the  major  premise  of  a  statute. 
Very  often  the  major  premise  to  which  the 
circumstances  of  a  case  are  to  be  applied  is 
a  rule,  not  of  legislative  enactment,  but  of 
common  law.  For  example,  it  is  a  rule  of 
common  law  that  there  can  be  no  theft  of 
wild  animals  (including  wild  birds).  Let  us 
take  an  instance  of  the  application  of  this  rule. 
In  Regina  v.  Cory  (1864),  the  prisoner  was 
indicted  for  stealing  eighty  tame  pheasants, 
which  had  been  hatched  by  a  common  hen, 
and  which,  as  it  appeared  in  evidence,  were 
intended  to  be  turned  loose  when  they  were 
of  an  age  to  leave  the  hen.  Now  there  was  no 
doubt  that  pheasants  were  "  wild  animals  " 
in  law,  and  in  their  wild  state  could  not  be 
the  subjects  of  larceny  :  but  the  question  was 
whether  these  particular  birds,  being  kept 
under  the  control  of  the  prosecutor,  could  be 
considered  "  tame  "  in  the  circumstances  of 


186         COMMON-SENSE   IN   LAW 

this  case.  Baron  Channell,  in  directing  the 
jury,  said  :  "  As  a  matter  of  law,  I  have  no 
difficulty  whatever  in  telling  you  that  these 
pheasants,  having  been  hatched  by  hens, 
and  reared  in  a  coop,  were  tame  pheasants  at 
the  time  they  were  taken,  whatever  might 
have  been  their  destiny  afterwards.  Being 
thus,  the  prosecutor  had  such  a  property  in 
them  that  they  would  become  the  subjects  of 
larceny."  Thus  the  judge  brought  the  case 
within  the  major  premise  of  common  law  : 
and  it  is  worth  noting  that  this  application  of 
the  major  premise  by  a  single  judge  in  a 
direction  to  the  jury  was  adopted  by  a  superior 
Court  (the  Court  of  Crown  Cases  Reserved) 
in  the  later  and  important  case  of  Regina  v. 
Shickle  (1868). 

Thus  we  see  that  in  the  process  of  case-law 
judges  have  often  to  bring  the  minor  premise 
of  a  particular  case  within  a  well-defined 
major  premise  either  of  statute  or  of  common 
law.  But  sometimes  their  task  is  more 
difficult.  They  have  to  discover  the  major 
premise  itself  before  they  can  determine  the 
rule  under  which  the  case  falls.  Suppose  I 
keep  on  my  land  a  very  large  accumulation 
of  water  which,  if  it  escapes,  is  practically 
certain  to  do  damage  to  others.     If  it  does  in 


JUDICIAL   PRECEDENTS        187 

fact  escape,  and  an  action  is  brought,  the 
major  premise  is  not,  or  rather  was  not, 
altogether  clear.  The  question  is  whether  I 
shall  be  liable  only  if  the  water  escapes  through 
my  negligence  :  or  whether,  having  taken  the 
responsibility  of  keeping  a  particularly  danger- 
ous object  on  my  land  for  my  own  purposes, 
I  must  be  held  liable  whether  its  escape  was 
due  to  my  negligence  or  not.  This  was  the 
problem  which  faced  the  Court  in  the  cele- 
brated case  of  Rylands V.Fletcher  (1868).  The 
facts  of  the  case  may  be  given  in  the  words 
of  Lord  Moulton  in  a  recent  judgment  ^ : 

"  The  defendants  .  .  .  had  constructed  a 
reservoir  on  their  and  to  collect  and  hold 
water  for  the  purpose  of  working  their  mill. 
Under  that  land  were  situated  underground 
workings  of  an  abandoned  coal  mine,  the 
existence  of  which  was  unknown  to  every- 
body. After  the  reservoir  had  been  filled, 
the  water  found  its  way  down  to  those 
underground  workings  through  some  old 
shafts,  and  escaping  through  them  flooded 
the  plaintiff's  colliery.  The  defendants  had 
been  guilty  of  no  negligence  either  in  the 
construction  or  the  use  of  the  reservoir,  and 

^  Bickards  v.  Lothian  (1913),  A.C.  at  p.  275. 


188         COMMON-SENSE   IN   LAW 

they  contended  that  in  the  absence  of 
neghgence  they  were  not  Hable.  The  plain- 
tiff contended  on  the  other  hand  that  the 
defendants,  having  brought  and  stored  the 
water  upon  their  land  for  their  own  purposes, 
were  bound  to  keep  it  safely  there,  and  that 
if  it  escaped  to  adjoining  lands  and  did 
damage  the  defendants  were  liable  for  the 
breach  of  this  duty  whether  or  not  it  was 
due  to  negligence." 

The  Court  had  to  discover  the  major  premise 
under  which  the  case  should  be  brought:  it 
had  to  reason  by  analogy  from  the  liability 
for  other  kinds  of  dangerous  things,  e.g. 
wild  animals  :  and  finally  it  set  up  the 
principle  (in  the  words  of  Mr.  Justice  Black- 
burn, subsequently  approved  by  the  House  of 
Lords)  that  "  the  person  who  for  his  own 
purposes  brings  on  his  lands  and  collects  and 
keeps  there  anything  likely  to  do  mischief  if 
it  escapes,  must  keep  it  in  at  his  peril,  and  if 
he  does  not  do  so,  is  prima  facie  answerable 
for  all  the  damage  which  is  the  natural  con- 
sequence of  its  escape."  In  other  words,  the 
Court  set  up  the  major  premise  of  what  is 
generally,  though  not  universally,  recognized 
as  the  "  doctrine  of  absolute  liability." 


JUDICIAL   PRECEDENTS         189 

4.  When  a  new  principle  has  been  formu- 
lated by  the  judges,  their  decision  on  the  case 
assumes  authority,  and  if  this  authority  is 
followed  on  subsequent  occasions  the  case  is 
called  a  leading  case.  I  will  borrow  an  example 
from  a  recent  writer  on  Jurisprudence  ^  : 

"  In  the  year  1620,  the  Court  of  King's 
Bench  decided  the  famous  case  of  Pells  v. 
Broxvn.  It  was  this  :  Land  was  devised  to 
Thomas  Brown  and  his  heirs,  but  if  he  died 
without  issue  in  the  lifetime  of  his  brother 
William,  the  land  was  to  go  to  William  and 
his  heirs;  that  is,  Thomas  took  an  estate  in 
fee  simple,  with  an  executory  devise,  as  it  is 
called,  over  to  W^illiam,  in  case  Thomas  should 
die  in  the  lifetime  of  William  without  issue. 
Thomas  parted  with  the  land  by  a  conveyance, 
.  .  .  and  the  question  was  whether  Edward 
Pells,  who  claimed  the  land  under  this  con- 
veyance, held  it  subject  to  the  executory 
devise  to  William  or  free  from  it,  or,  in  other 
words,  whether  an  executory  devise  after  a 
fee  simple  is  destructible  by  the  holder  of  the 
fee. 

"  The  Court,  by  three  judges  to  one,  decided 
that  the  executory  devise  continued,  that 
Pells  took  the  land  subject  to  it,  that  Thomas 
1  J.  C.  Gray. 


190         COMMON-SENSE   IN   LAW 

could  not  destroy  it ;  and  so  the  law  has  been 
held  ever  since.  Therefore,  in  England  and 
America  future  contingent  interests  can  be 
validly  created  by  will.  This  is  by  no  means 
a  necessary  state  of  things.  In  Germany,  in 
France,  in  Louisiana,  and  generally,  I  believe, 
where  the  Civil  Law  prevails,  future  contingent 
interests  are  allowed,  if  at  all,  only  to  a  very 
limited  extent." 

5.  In  a  series  of  cases  connected  with  some 
particular  legal  principle,  it  often  happens 
that  the  original  authority  is  gradually  modi- 
fied by  practice  :  it  is  expanded  or  contracted 
according  to  the  coming  in  of  new  circum- 
stances, and  also  by  the  influence  of  new 
considerations  arising  out  of  the  progress  of 
opinion  both  among  the  public  at  large  and 
among  the  professional  class  of  lawyers.  All 
these  features  are  of  such  importance  both 
practically  and  theoretically  that  I  should  like 
to  call  attention  to  one  or  two  characteristic 
instances. 

Lawyers  are  exceedingly  averse  from  treat- 
ing original  principles  as  entirely  new  or 
invented  rules.  It  is  only  in  the  sphere  of 
the  equity  jurisdiction  of  Chancery,  which  for 
historical  reasons  has  been  less  trammelled 
by  precedents  than  that  of  the  common  law 


JUDICIAL   PRECEDENTS  191 

Courts,  that  the  process  of  invention  has  been 
distinctly  avowed.  But  it  is  evident  that 
the  same  process  has  really  been  operating  in 
the  history  of  common  law  as  in  equity  :  for 
how  could  the  huge  body  of  common  law 
doctrines  have  been  evolved  if  the  judges  had 
not  had  power  to  formulate  legal  rules  when 
the  statutory  law  of  the  country  did  not 
provide  express  legislation  ?  The  study  of 
the  actual  practical  course  of  English  legal 
development  leads  to  the  same  conclusion. 

Not  long  ago  the  following  case  was  tried 
at  the  Manchester  Assizes.^  The  action  was 
brought  by  an  infant  of  the  age  of  four  years, 
suing  by  his  father  as  his  next  friend,  to 
recover  damages  for  personal  injuries  alleged 
to  have  been  caused  by  the  negligence  of  a 
servant  of  the  defendant  corporation.  An 
automatic  gas-meter  in  the  house  of  the  plain- 
tiff's father  having  got  out  of  order  in  conse- 
quence of  a  coin  being  jammed  in  it,  a  postcard 
was  sent  to  the  town  hall  complaining  of  the 
defect  and  asking  that  some  one  might  be 
sent  to  put  it  right.  By  some  mistake  this 
complaint  was  not  attended  to,  but  the 
plaintiff's  nurse  seeing  in  the  street  a  man 
named  Ford,  who  was  an  inspector  of  gas- 
^  Fersyth  v.  Manchester  Corporation  (1912). 


192         COMMON-SENSE   IN   LAW 

fittings  in  the  employment  of  the  defendant 
corporation,  and  was  wearing  the  uniform  of 
the  gas  department,  asked  him  to  come  and 
look  at  the  meter.  Ford  accordingly  went  in 
and  attempted  to  remedy  the  defect  by  the 
use  of  his  pocket-knife.  Failing  in  this,  he 
went  out  to  get  some  proper  tools,  and  left 
the  knife  open  somewhere  in  the  room  which 
contained  the  meter.  While  he  was  absent  the 
plaintiff  played  with  the  knife  and  ran  it  into 
his  eye,  which  ultimately  had  to  be  removed. 
The  plaintiff's  case  was  that  in  leaving  the 
knife  where  the  child  had  access  to  it  Ford  had 
been  guilty  of  negligence,  and  that,  the  negli- 
gence having  been  committed  in  the  course  of 
his  employment,  the  corporation  was  liable  in 
damages.  The  defendants  alleged  that  Ford, 
in  doing  what  he  did  was  not  acting  within 
the  scope  of  his  authority,  he  being  an  in- 
spector of  gas-fittings  and  not  a  repairer  of 
meters.  The  jury  found  Ford  guilty  of 
negligence  while  acting  in  the  course  of  his 
employment,  and  awarded  £125  damages. 
The  judge,  however,  ordered  judgment  to  be 
entered  for  the  defendants,  being  of  opinion 
that  there  was  no  evidence  to  support  the 
finding  that  Ford  was  acting  in  the  course 
of  his  employment.     The  plaintiff  naturally 


JUDICIAL   PRECEDENTS         193 

appealed,  but  the  Court  of  Appeal  upheld 
the  decision  of  the  Court  below.  Lord  Justice 
Vaughan  Williams  said,  among  other  things, 
that  in  his  judgment  it  was  quite  plain  that  the 
duty  of  this  inspector  was  merely  to  inspect 
and  report,  and  there  was  no  evidence  what- 
ever that  in  attempting  to  remove  with  his 
knife  the  coin  which  was  jammed  in  the  meter 
he  was  acting  within  the  scope  of  his  authority. 
It  seemed  to  him  that  this  attempt  was 
nothing  more  than  a  piece  of  volunteer 
kindness. 

This  case  may  be  taken  as  characteristic 
of  the  present  state  of  the  doctrine  of  the 
responsibility  of  masters  for  the  acts  of  their 
employees.  Now,  this  doctrine  must  be 
traced  historically  through  a  series  of  stages 
from  a  time  when  the  common  law  of  the 
kingdom  considered  the  question  from  a 
point  of  view  opposite  to  that  which  is  accep- 
ted now.  All  through  the  mediaeval  period, 
as  reflected  in  the  Year  Books,  the  view  pre- 
vailed that  a  master  is  responsible  for  any 
wrongs  committed  by  his  servant  in  the 
course  of  his  employment.  In  the  sixteenth 
century  the  Courts  began  to  recognize  that  it 
was  unfair  to  put  such  a  wide  construction  on 
the  liability  of  the  master,  and  the  doctrine 


194         COMMON-SENSE   IN   LAW 

of  general  employment  was  modified  by  the 
requirements  of  particular  authority  on  the 
part  of  the  master.  This  means  that  "  the 
master  in  order  to  be  Hable  must  have  com- 
manded the  very  act  in  which  the  wrong  con- 
sisted." Towards  the  end  of  the  seventeenth 
century  a  reaction  set  in.  "  The  nation  was 
reaping  in  commercial  fields  the  harvest  of 
prosperity  sown  in  the  Elizabethan  age  and 
destined  to  show  fullest  fruition  in  the  age 
of  Anne.  The  conditions  of  industry  and 
commerce  were  growing  so  complicated,  and 
the  original  undertaker  and  employer  might 
now  be  so  far  separated  from  the  immediate 
doer,  that  the  decision  of  questions  of  masters' 
liability  must  radically  affect  the  conduct  of 
business  affairs  in  a  way  now  for  the  first  time 
particularly  appreciated  "  (J.  H.  Wigmore). 

It  came  to  be  assumed  that  masters  and 
employers  were  responsible  for  the  acts  of 
their  servants  and  employees  in  so  far  as  the 
latter  could  be  held  to  have  acted  by  their 
express  or  implied  command.  This  is  the 
view  followed  by  the  Courts  under  the  influence 
of  judgments  of  Lord  Holt  and  Lord  Hard- 
wicke  in  the  eighteenth  century.  In  order  to 
meet  the  complicated  requirements  of  growing 
industry  and  commerce,  the  chief  stress  was 


JUDICIAL   PRECEDENTS  195 

laid  on  determining  how  far  an  agent  was 
acting  for  his  master's  business  or  benefit; 
this  became  the  test  of  an  implied  command, 
and  the  master's  responsibility  for  torts 
committed  by  the  agent  was  co-extensive 
with  the  authority  which  he  was  deemed  to 
have  given.  Lastly,  about  1800  the  doctrine 
assumed  its  modern  shape,  chiefly  through  the 
action  of  Lord  Kenyon  as  Chief  Justice  of 
the  King's  Bench.  The  test  of  responsibility 
came  to  be  expressed  in  the  words  "  within 
the  scope  of  the  employment,"  the  very  words 
which  were  used  in  the  recent  judgment  at 
Manchester.  Thus  we  see  that  the  law  as  to 
the  responsibility  of  masters  and  employers 
has  passed  through  four  stages  of  development, 
and  that  it  was  elaborated  by  means  of 
decisions  of  the  Courts  under  the  influence  of 
changing  conditions  and  opinions.^ 

Altogether,  the  gradual  modification  of  rules 
once  accepted  as  conclusive  authority  affords 
an  interesting  insight  into  the  cross-currents 
of  public  opinion  and  legal  doctrine.  The 
class  of  lawyers,  and  especially  the  judges 
who  assume  the  direct  responsibility  for  the 

^  On  the  whole  subject  see  J.  H.  Wigmore  :  Responsi- 
bility for  Tortious  Acts,  in  Anglo- Americayi  Essays  in  the 
History  of  English  Law,  pp.  520  ff. 


196         COMMON-SENSE    IN    LAW 

settlement  of  disputes  involving  immense  prac- 
tical interests,  cannot  afford  to  disregard  the 
change  of  views  taking  place  in  the  ranks  of 
society  at  large  in  regard  to  fundamental 
problems  of  law.  Such  questions,  for  in- 
stance, as  the  extent  of  criminal  responsibility, 
the  modes  and  degrees  of  punishment,  the 
civil  rights  of  married  and  unmarried  women, 
the  position  of  children  under  the  disciplinary 
power  of  parents,  are  sure  to  excite  a  great 
deal  of  feeling  among  the  public,  and  the 
results  of  conflicting  views  are  bound  to  vary 
a  great  deal  from  age  to  age.  The  movement 
of  judicial  case-law  is  bound  to  follow  to  some 
extent  these  currents  of  opinion,  although 
they  will  in  some  degree  be  moderated  by  the 
conservative  traditions  of  tribunals :  as  it 
has  been  wittily  put  by  Professor  Dicey,  the 
views  of  judges  are  apt  to  correspond  to  the 
opinions  of  the  day  before  yesterday. 

6.  The  conservative  and  traditional  leanings 
of  the  lawyer's  mind  are  expressed,  even  in 
such  cases,  by  the  fact  that  the  Courts  lean 
in  the  absence  of  direct  precedent  on  state- 
ments of  doctrine  in  books,*  and  on  maxims, 

1  For  example  :  In  Mr.  Justice  Walton's  judgment  in 
Prested  Miners'  Gas  Indicating  Electric  Lamp  Company  v. 
Gardner  (1910),  the  view  that  s.  4  of  Statute  of  Frauds 


JUDICIAL   PRECEDENTS         197 

that  is,  on  general  propositions  of  law  derived 
from  treatises,  lectures,  pronouncements  of 
foreign  jurists,  etc.  It  is  to  a  great  extent  in 
this  indirect  way  that  Roman  Law  has  come 
to  exercise  a  strong  influence  on  the  develop- 
ment of  English  Law.  Counsel  did  not  quote 
the  Corpus  Juris,  and  Courts  never  grounded 
their  decision  on  clauses  from  the  Digest  or 
the  Codex;  but  general  propositions  evolved 
from  the  study  of  Roman  Law  were  con- 
stantly circulated  in  the  course  of  trials,  and 
sometimes  endorsed  and  construed  by  the 
judges.  It  was,  for  example,  a  maxim  of 
Roman  Law  that  no  action  will  lie  on  any 
agreement  entered  into  for  immoral  purposes 
{ex  injusta  causa  non  oritur  actio),^  and  we  see 
this  principle  reproduced  in  English  Law.  In 
Scott  V.  Brown  (1892)  an  action  was  brought 
by  the  plaintiff  against  the  defendants,  who 
were  stockbrokers,  for  the  rescission  of  a  con- 
tract to  purchase  shares  in  a  certain  company 
which,  at  the  time  of  the  making  of  the  con- 
tract,   had    not    been    brought    out,    and    to 


may  apply  to  the  sale  of  goods  was  set  up  largely  on  the 
strength  of  opinions  expressed  in  Smith's  Leading  Cases 
and  in  Leake's  Contracts. 

^  Dig.  II,  14,  2  :  Pacta  quae  turpem  causam  continent  non 
sunt  obseriamla. 


198         COMMON-SENSE   IN   LAW 

recQi'er  money  paid  to  the  defendants  for  the 
saii^hares,  on  thegrou  nd  that  the  defendants 
while  acting  as  the  plaintiff's  brokers  had 
delivered  their  own  shares  to  him  instead  of 
purchasing  them  on  the  Stock  Exchange  at  a 
premium  in  accordance  with  the  agreement ; 
the  object  of  this  transaction  being  to  induce 
the  public  to  believe  that  there  were  buyers 
of  such  shares  at  a  premium  on  the  Stock 
Exchange,  when  in  fact  there  were  none  but  the 
plaintiff.  In  the  Court  of  Appeal,  Lord  Justice 
Lindley  said  that  the  maxim  eoc  turpi  causa 
non  oritur  actio  (an  action  cannot  arise  from  an 
immoral  consideration) 

"  expresses  a  clear  and  good  legal  principle 
which  is  not  confined  to  indictable  offences. 
No  Court  ought  to  enforce  an  illegal  contract 
or  allow  itself  to  be  made  a  means  of  en- 
forcing such  obligations  alleged  to  arise  out 
of  a  contract  or  transaction  which  is  illegal, 
if  the  illegality  is  duly  brought  to  the  notice 
of  the  Court,  and  if  the  person  invoking  the 
aid  of  the  Court  is  himself  implicated  in 
the  illegality."  [The  plaintiff  shows  that  he 
\vished  to  deceive  the  public.  His  purchase 
was  an  actual  purchase.]  "  Under  these 
circumstances  the  plaintiff  must  look  else- 


JUDICIAL   PRECEDENTS         199 

where  than  in  a  court  of  justice  for  such 
assistance  as  he  may  require  if  the  claim 
to  such  assistance  is  based  on  his  illegal 
contract." 

Eventually  a  body  of  conveniently  stated 
rules  arose  which  could  not  always  be  traced 
directly  either  to  Roman  Law  or  to  pre- 
cedent, but  which  served  as  a  guide  for  parties 
and  judges  in  litigation.  Of  course  their 
legal  authority  has  to  be  distinguished  care- 
fully from  their  doctrinal  or  literary  history  : 
legal  authority  could  be  imparted  to  them 
only  by  their  recognition  in  the  courts  for 
the  purpose  of  formulating  the  principle  of 
the  decision  {ratio  decidendi)  in  given  cases. 

7.  The  literary  treatment  of  legal  topics  by 
writers  who  desire  either  to  state  and  explain 
existing  rules,  or  to  systematize  them,  or  to 
offer  criticisms  and  suggest  alterations  or  to 
discuss  particular  problems  and  cases,  cannot 
in  itself  constitute  a  source  of  law.  Its  aim 
is  the  expression  of  ideas  entertained  by  one 
or  the  other  jurist,  but  not  the  promulgation 
of  rules  obligatory  for  any  one  else.  But  there 
may  be  and  there  have  actually  been  cases 
when  the  opinions  of  experts  who  were  neither 
legislators  nor  judges  was  appealed  to,  and 


200         COMMON-SENSE   IN   LAW 

obtained  authoritative  force.  The  most  con- 
spicuous instance  of  this  is  afforded  by  the 
consultations  of  authorities  in  the  juris- 
prudence {responsa  prudentium)  of  Roman 
Law.  In  difficult  cases  Roman  magistrates 
of  the  early  period  consulted  the  pontifices  as 
to  legal  rules,  and  later  on  asked  famous 
lawyers  for  their  advice.  Parties  to  a  suit 
also  obtained  private  consultations,  which 
were  sometimes  accepted  as  authoritative  by 
a  tribunal.  From  the  time  of  Augustus  the 
right  to  give  such  consultations  {jus  respon- 
dendi)  began  to  be  conferred  officially  by  the 
Emperor  on  certain  leading  jurists.  In  course 
of  time  not  only  direct  responsa  in  a  given 
case,  but  responsa  obtained  in  former  cases 
and  passages  from  the  writings  of  famous 
jurisconsults  began  to  be  quoted  as  authori- 
ties. It  is  not  quite  clear,  however,  in  what 
way  conflicts  of  opinion  were  solved  in  the 
earlier  empire.  Valentinian  III  tried  to 
settle  difficulties  arbitrarily  by  selecting 
five  especially  authoritative  jurists  whose 
^vritings  and  opinions  were  to  prevail,  and  by 
allowing  a  kind  of  casting  vote  to  Papinian 
among  these  five.  But  obviously  such  an 
expedient  was  insufficient  to  get  rid  of  all 
difficulties.     Papinian  might  be  silent  on  the 


JUDICIAL   PRECEDENTS         201 

very  question  in  dispute,  and  opinions  of 
deceased  writers  could  not  always  be  mechani- 
cally arrayed  against  each  other.  It  is  clear 
that  the  judgment  and  discretion  of  the 
judges  before  whom  the  actual  case  was  tried 
must  have  played  a  considerable  part  in  the 
selection  of  suitable  authorities.  Justinian 
tried  to  find  a  way  out  of  confusion  by  reducing 
the  opinions  of  legal  writers  to  a  compendium 
in  his  digest.  It  cannot  be  said  that  this 
enterprise  was  altogether  a  success,  for  all  sorts 
of  obscurities  and  contradictions  were  still  left 
to  be  cleared  up.  But  the  Digest  in  any  case 
marks  the  close  of  a  period  when  writers  on 
jurisprudence  were  referred  to  as  authorities 
for  the  formulation  of  legal  rules  and  the 
collection  of  fragments  from  their  books  took 
the  shape  of  clauses  in  a  code.  It  is  the  pre- 
ceding period  that  is  chiefly  of  interest  for  our 
purpose.  The  peculiarity  of  the  method  lies 
in  the  fact  that  the  judges,  instead  of  formula- 
ting legal  rules  by  the  help  of  their  own 
minds,  as  in  judge-made  law,  turn  to  the 
assistance  of  winters  or  consulting  jurists. 
The  latter  perform  the  same  kind  of  mental 
operations  as  a  Court  would  have  to  perform 
when  settling  case-law ;  but  there  is  a  division 
between  jurisprudential  and  judicial  authority, 


202         COMMON-SENSE   IN   LAW 

though  the  boundary  between  the  two  is  not 
clearly  traced,  at  least  as  regards  the  decision 
of  the  concrete  case.  And  the  doctrinal 
analysis  assumes  the  character  of  a  legal 
source  not  by  its  own  weight,  but  because  it 
is  adopted  in  one  way  or  another  by  the 
Emperor  or  by  the  magistrate.  It  must 
therefore  be  regarded  as  preparing  either  of 
case-law  or  of  legislation,  according  to  its 
contents  and  the  circumstances  in  which  it 
was  given. 

The  use  of  the  gloss  to  the  Corpus  Juris 

dxiring  the  later  Middle  Ages  as  well  as  during 

the  sixteenth  and  seventeenth    centuries   is 

another  instance  of  the  direct  authority  of 

jurisprudential  doctrine.     The  proverb  "  Che 

non  ha  Azzo  non  vade  al  palazzo,''  ^  may  be 

taken  as  a  practical  hint  as  to  the  best  manual 

of  positive  law ;  but  there  is  also  the  doctrine 

"  What  is  not  received  in  the  commentary  of 

the  glossators  is  not  received  by  the  tribunal  " 

("  quod    non    agnoscit    glossa    non    agnoscit 

forum "),    which    shows    that    the    ordinary 

commentary   to    the    Corpus,    the    glossa    of 

Accursius,  which  was  a  kind  of  compendium 

of  the  writings  of  glossators,  was  used  as  a 

1  "  He  who  has  not  a  copy  of  Azzo's  books  need  not 
go  to  the  Courts  of  Justice.'* 


JUDICIAL   PRECEDENTS         203 

means  to  limit  to  some  extent  the  body  of 
rules  which  could  be  pleaded  in  the  Courts  of 
Italy  and  Germany,  where  references  to  Civil 
Law  were  admitted.  In  a  sense  the  Corpus 
Juris  itself,  as  the  basis  of  the  so-called 
common  law  received  in  Germany  before  the 
introduction  of  the  new  Civil  Code  of  that 
country,  was  a  law  of  the  learned  :  and  this 
explains  the  curious  practice,  much  followed 
by  Courts,  of  sending  up  the  documents  of  a 
case  to  the  Law  Faculty  of  a  University  of 
some  standing — Halle,  Greifswald,  Jena — in 
order  to  obtain  a  consultation  as  to  the  proper 
decision.  This  appeal  to  private  authority  is 
in  a  great  measure  akin  to  the  submission  of 
parties  to  private  arbitration.  It  testifies  to 
a  rather  helpless  state  of  the  Courts  themselves, 
and  must  be  considered  exceptional. 

8.  Case-law  cannot  be  brought  under  the 
operation  of  a  famous  doctrine  proclaimed  for 
enacted  law,  namely,  that  it  ought  not  to  have 
retroactive  application.  This  principle  has 
been  emphatically  asserted  in  the  Constitution 
of  the  United  States,  and  has  given  rise  to 
decisions  of  the  Supreme  Court  which  invali- 
date laws  passed  by  single  States  and  even  by 
Congress.  Conspicuous  instances  of  this  kind 
occur  in  connection  with  the  Civil  War  in  the 


204         COMMON-SENSE   IN    LAW 

'sixties.  In  Cummings  v.  Missouri,  the  State 
of  Missouri  had  passed  a  clause  in  its  Consti- 
tution in  1865  requiring  from  all  who  held  or 
took  certain  specified  offices  and  honours  an 
oath  to  the  effect  that  the  taker  of  it  had  never 
been  hostile,  or  supported  those  hostile,  to  the 
United  States  or  to  the  Government.  Cum- 
mings, a  Roman  Catholic  priest,  was  indicted 
under  this  law  for  teaching  and  preaching 
without  having  taken  the  necessary  oath.  He 
was  fined  and  committed  to  jail  until  the  fine 
was  paid.  In  due  course  his  case  came  up 
before  the  Supreme  Court  of  the  United 
States,  which  decided  by  majority  that  the 
law  was  invalid  as  inflicting  penalties  for  acts 
which  at  the  time  they  were  committed  were 
not  illegal  :  in  other  words,  it  was  in  effect  an 
"  ex  'post  facto  "  law  prohibited  by  the  federal 
constitution. 

In  a  similar  way  in  Ex  parte  Garland  (1866), 
the  Supreme  Court  invalidated  a  law  of  Con- 
gress in  consequence  of  which  an  advocate 
was  prevented  from  pleading  before  the 
Supreme  Court  because  he  had  taken  part  in 
the  rebellion. 

It  is  impossible  to  apply  this  doctrine  to 
judge-made  law  without  resorting  to  a  fiction, 
for  if  a  case  is  material   for  an  enunciation 


JUDICIAL   PRECEDENTS  205 

of  law,  the  application  of  this  very  law  to 
this  very  case  is  necessarily  retroactive.  The 
parties  could  not  know  what  the  law  was 
before  the  decision  was  given,  and  it  is  the 
exact  knowledge  which  makes  all  the  differ- 
ence in  a  dispute  :  no  one  would  willingly 
expose  himself  to  defeat  and  heavy  costs  if  he 
knew  for  certain  that  the  law  was  against  him. 
The  most  bitter  criticism  of  the  uncertainty 
of  the  methods  of  English  common  law  has 
been  offered  by  Bentham  : 

"  On  the  question  what  the  law  is,  so  long 
as  the  rule  of  action  is  kept  in  the  state  of 
common,  alias  unwritten,  alias  imaginary  law, 
authority  is  everything.  The  question  is 
what  on  a  given  occasion  A  (the  judge)  is 
likely  to  think  :  wait  till  your  fortune  has  been 
spent  in  the  inquiry,  and  you  will  know ;  but 
forasmuch  as  it  is  naturally  a  man's  wish  to 
be  able  to  give  a  guess  on  what  the  result  will 
eventually  be,  before  he  has  spent  his  fortune 
...  he  applies,  through  the  medium  of  B  (an 
attorney)  for  an  opinion  to  C  (a  counsel),  who, 
considering  what  D  (a  former  judge)  has  said 
or  been  supposed  to  say,  deduces  therefrom 
his  guess  as  to  what,  when  the  time  comes, 
judge  A,  he  thinks,  will  say  "  (VIII,  397). 


206         COMMON-SENSE   IN    LAW 

Without  putting  the  case  in  this  caustic  way, 
we  have  to  recognize  that  sometimes  on  very 
important  points  of  law  the  highest  authorities 
will  take  opposite  views. 

Sometimes  the  uncertainty  as  to  the  state 
of  the  common  law  may  be  so  great  that 
some  of  the  judges  may  dissent  from  the 
decision  of  their  colleagues,  and  a  Court  below 
may  pronounce  its  judgment  in  one  sense 
while  a  Court  above  may  come  to  exactly  the 
opposite  conclusion.  Thus  in  the  Taff  Vale 
case  already  mentioned  (p.  81),  Mr.  Justice 
Farwell  held  the  trade  union  to  be  liable  for 
torts  committed  by  its  agents  :  the  Court  of 
Appeal  held  the  opposite  opinion;  but  ulti- 
mately the  House  of  Lords  laid  down  that 
the  trade  union  should  be  put  on  the  footing 
of  a  corporation  and  should  therefore  be  liable. 

This  is  an  unavoidable  consequence  of  the 
case-law  system,  but  it  has  a  deeper  meaning 
than  may  appear  at  first  sight.  It  is  a  result 
of  the  fact  that  in  the  process  of  the  making 
of  law  by  judges,  the  law  appears  not  as 
the  formulation  of  a  command  followed  by 
execution,  but  as  a  declaration  of  existing 
right  obtained  through  the  wisdom  and  learn- 
ing of  the  judges.  The  material  rather  than 
the  formal  side  of  legal  rules  comes  to  the  fore. 


JUDICIAL   PRECEDENTS  207 

It  is  not  absolutely  necessary  for  the  settle- 
ment of  disputes  that  prospective  commands 
should  have  been  given,  but  it  is  absolutely 
necessary  that  there  should  be  means  of 
ascertaining  what  is,  in  the  opinion  of  persons 
provided  with  judicial  authority,  the  way  to 
settle  the  difficulty  in  a  manner  most  conso- 
nant with  right  and  justice.  In  other  words,  ^ 
the  decision,  before  it  can  become  an  au- i  {^*^ 
thority,  must  be  a  definite  declaration  of  right  \  f 

This  by  itself  should  be  sufficient  to  show  the 
defective  character  of  the  current  Austinian 
definition,  and  it  is  surprising  that  this  truth 
has  not  been  realized  more  fully  by  English 
jurists ;  for  the  common  law,  with  which  they 
have  principally  to  deal,  stands  or  falls  with 
the  admission  of  legal  principles  obtained  not 
by  command,  but  by  retrospective  estimates 
of  right  and  justice. 


CHAPTER   VIII 

EQUITY 

1.  We  have  discovered  by  this  time  how 
large  a  part  in  the  formulation  of  law  is 
played  by  judicial  declarations  of  right  in 
the  process  of  interpretation  of  statutes  as 
well  as  in  the  formation  of  custom  and  of 
case-law.  But  there  is  a  fourth  legal  source 
in  which  the  creative  power  of  Courts  is  even 
more  conspicuous,  because  it  has  to  be 
exercised  to  a  great  extent  in  opposition  to 
recognized  legal  rules.  This  is  Equity,  or 
fairness.  The  equity  I  am  speaking  of  now 
is  not  the  modern  equity  jurisdiction  of 
English  tribunals,  which  has  been  combined 
with  common  law  by  the  Judicature  Acts 
of  1873-5,  and  which  even  for  some  hundred 
and  fifty  years  before  that  event,  since  the 
times  of  Lords  Chancellors  Nottingham,  Hard- 
wicke  and  Eldon,  had  assumed  the  character 
oi'  a  legal  system  as  technical  as  common  law 
itself,  although  sometimes  conflicting  with 
the  common  law  in  a  curious  way. 
208 


EQUITY  209 

Modern  English  equity  is  interesting  for 
our  purpose  only  in  so  far  as  its  peculiar 
course  has  been  shaped  historically  by  the 
operation  of  principles  distinct  from  ordinary 
legal  rules.  But  it  is  in  the  earlier  history 
of  this  branch  of  English  law,  in  the  period 
ranging  roughly  from  the  fourteenth  to  the 
eighteenth  centuries,  that  we  get  the  best 
material  for  a  study  of  equity  as  a  distinct 
principle.  Roman  history  and  the  observa- 
tion of  the  legal  institutions  of  the  Greeks, 
the  Germans,  and  other  nations  also  give 
excellent  illustrations  of  the  process  under 
discussion. 

One  important  point  was  noticed  and 
explained  by  Aristotle  :  he  calls  attention  to 
the  fact  that  legal  rules  are  necessarily 
general,  while  the  circumstances  of  every  case 
are  particular,  and  that  it  is  beyond  the 
power  of  human  insight  and  science  to  lay 
down  in  advance  rules  which  will  fit  all 
future  variations  and  complications  of  practice. 
Therefore  law  must  be  supplemented  by 
equity  {epieikeia);  there  must  be  a  power  of 
adaptation  and  flexible  treatment,  some- 
times suggesting  decisions  which  will  be  at 
variance  with  formally  recognized  law,  and 
yet   will    turn   out   to   be   intrinsically   just. 


210         COMMON-SENSE   IN   LAW 

The  same  principle  has  been  put  forward  in 
very  distinct  terms  in  the  Introduction  to 
the  French  Code  of  1804. 

In  the  practice  of  Roman  law  during  the 
last  centuries  of  the  Republic  and  the  early 
period  of  the  empire,  we  often  hear  of 
an  opposition  between  the  spirit  and  the 
letter  of  the  law.  Cicero's  speeches  furnish  us 
with  an  excellent  example  of  a  struggle  be- 
tween equitable  and  formalistic  interpretation 
in  the  process  between  Caecina  and  Aebutius. 
There  was  a  dispute  between  two  Romans  of 
high  rank,  A.  Caecina  and  L.  Aebutius,  about 
a  certain  estate.  As  a  step  in  the  legal 
procedure  appropriate  to  the  case,  it  was 
necessary  for  Caecina  to  make  a  formal 
entry  upon  the  land;  this  he  attempted  to 
do,  but  was  prevented  by  Aebutius,  who 
opposed  him  with  a  force  of  armed  men. 
Without  trying  conclusions  by  force,  Caecina 
brought  an  action  against  Aebutius  in  the 
form  of  a  so-called  interdict  {unde  vi  armata). 
This  interdict  applied  to  the  violent  dis- 
possession of  a  landowner,  and  was  framed 
as  follows  :  "  In  the  place  whence  thou  or  thy 
slaves  or  agent  hast  this  year  violently  ousted 
him  or  his  slaves  or  agent  from  possession 
.  in  that  place  do  thou  reinstate  him  in 


EQUITY  211 

possession."  When  the  case  came  up  for  trials 
the  defendant  objected,  among  other  things, 
that  as  a  matter  of  fact  there  had  been  no 
ejectment  and  no  violence.  Cicero,  as  comisel 
for  the  plaintiff,  retorted  by  ridiculing  the 
view  that  the  law  did  not  apply  except  in 
cases  of  actual  ejectment  and  violence  in 
the  literal  sense  of  the  words.  "  It  is  as  if  the 
defendant  said,"  he  urged,  "  '  Yes,  I  have  done 
these  things,  and  you  have  no  means  of 
proceeding  against  me  by  civil  action  before 
the  Praetor.'  When  our  ancestors  were  men 
of  such  diligence  and  prudence  as  to  estab- 
lish every  requisite  law  not  only  for  such 
important  cases  as  this,  but  for  even  the 
most  trivial  matters,  will  you  hold  that 
they  overlooked  this  class  of  cases,  the  most 
important  of  all,  so  that,  if  people  had 
compelled  me  to  depart  from  my  home  by 
force  of  arms,  I  should  have  had  a  right  of 
action,  but  as  they  only  prevented  me  from 
entering  my  home,  I  have  none?  Shall  that 
man  gain  his  cause  before  your  tribunal,  who 
defends  himself  by  this  argument,  '  I  drove 
you  away  with  armed  men,  but  I  did  not  drive 
you  out"i" 

Turning  to  the  question  of  actual  violence, 
Cicero  continues  :    "  Aebutius  is  not  touched 


212         COMMON-SENSE   IN   LAW 

by  this  interdict,  because  violence  was  not 
offered  to  Caecina.  Can  you  then,  Aebu- 
tius,  say  that  it  was  not  violence  which 
hindered  him,  when  by  reason  of  an  armed 
force  he  was  unable  to  come  to  a  place,  when 
he  wished  to  come  there  and  had  gone  out 
with  that  intention?  What  then  shall  we 
say?  If  he  had  been  there,  and  if  under 
the  influence  of  fear  he  had  fled  from  that 
place  when  he  saw  the  armed  men,  would 
you  then  say  that  he  had  been  driven  away  ? 
I  think  so.  Will  you  judges,  then,  who 
decide  disputes  with  such  care  and  such 
subtlety,  by  expressions  and  not  by  equity, 
you  who  interpret  laws  ...  by  their  letter, 
will  you  be  able  to  say  that  a  man  has  been 
driven  away,  who  has  never  been  touched  ? 
What !  Will  you  say  that  he  has  been 
thrust  out  from  his  place?  For  that  was 
the  word  that  the  Praetors  formerly  used  in 
their  interdicts.  Can  any  one  be  thrust  out 
who  is  not  touched  ?  Must  we  not  if  we  abide 
by  the  strict  letter,  understand  that  that  man 
only  is  thrust  out  on  whom  hands  are  laid  ? 
What  law,  what  resolution  of  the  Senate, 
what  treaty  cannot  be  invalidated  and  torn 
to  pieces  if  we  choose  to  bend  facts  to  words 
and  leave  out  of  the  question  the  intention 


EQUITY  213 

and  design  and  authority  of  those  who  wrote 
them?" 

Again,  the  requirements  of  the  ever  grow- 
ing Imperial  jurisdiction  of  Rome  led  to  the 
development  of  a  special  system  of  law  for 
the  relations  of  subjects  who  were  not  Roman 
citizens.  The  foreign  praetor  {praetor  pere- 
grinus)  and  the  proconsuls  had  to  elaborate 
and  to  apply  legal  principles  different  from 
those  which  were  current  between  citizens, 
and  thus  the  jus  gentium  arose  by  the  side 
of  the  national  jus  civile  as  a  body  of  general 
rules  of  law  suggested  by  fairness,  common 
sense,  knowledge  of  the  world  and  some 
acquaintance  with  foreign  law.  The  magis- 
trates who  were  entrusted  with  jurisdiction 
in  these  cases  based  their  decisions  and  the 
prospective  rules  of  their  edicts  on  general 
considerations  of  equity  and  utility  {ex  bono 
et  aequo). 

The  recognition  of  the  value  of  these 
principles  in  regard  to  foreigners  reacted 
powerfully  on  the  situation  of  the  citizens 
themselves.  It  was  not  to  be  expected  that 
Romans  would  continue  to  submit  to  narrow 
and  rigid  forms  when  a  wider  and  wiser 
treatment  of  legal  problems  had  been  evolved 
for  their  subjects.     And  as  a  matter  of  fact 


214         COMMON-SENSE   IN   LAW 

the  jurisdiction  of  the  city  praetor  was  soon 
modified  in  the  same  direction  as  that  of 
the  'praetor  peregrinus  and  of  the  provincial 
governors. 

One  of  the  fundamental  principles  which 
governed  the  rules  of  succession  in  the  strict 
law  of  Rome  was  agnation,  that  is,  relation- 
ship based  either  on  kinship  through  the 
male  stock,  or  on  artificial  adoption  into  the 
family  according  to  prescribed  legal  forms. 
The  usual  successor  to  an  estate  came  from 
the  class  of  so-called  "  own  heirs,"  or  members 
of  the  family  under  the  immediate  "  power  '' 
of  the  father.  In  a  case  of  intestacy,  these 
"  own  heirs  "  were  first  entitled  to  the  inherit- 
ance ;  after  them  came  the  nearest  agnatic 
relative  of  the  deceased.  The  rigid  application 
of  these  rules  imposed  material  hardships  on 
persons  who  came  to  be  considered  as  having  a 
natural  right  to  share  in  the  property  of  the 
deceased ;  and  the  praetor  therefore  mitigated 
the  severity  of  their  operation  by  applying 
the  principles  of  the  law  of  nations.  This  he 
effected  by  developing  the  doctrine  of  "  pos- 
session of  the  estate  "  {bonorum  possessio) , 
He  did  not  override  or  abrogate  the  rules 
of  the  strict  law,  nor  did  he  destroy  the  legal 
title  of  the  heir;  but  by  the  employment  of 


EQUITY  215 

fictions  and  summary  remedies  he  placed  "  in 
the  position  of  heir  "  a  person  whom  he  con- 
sidered to  have  a  natural  claim.  In  cases 
of  intestacy  he  supplemented  the  principle 
of  agnation  by  the  wider  principle  of  cognation, 
or  blood  kinship  in  the  modern  sense,  includ- 
ing, of  course,  relationship  on  the  female  side. 
Preference  was  given  firstly  to  legitimate 
children  of  the  deceased;  secondly,  to  those 
entitled  by  the  strict  legal  rules  of  succession ; 
thirdly,  to  nearest  kindred  in  blood;  and 
fourthly,  to  the  widow  or  widower  of  the 
deceased. 

2.  An  analogous  process  took  place  in 
English  law  when  the  writ  procedure  and 
substantive  common  law  had  attained  to 
their  full  development  in  the  course  of  the 
thirteenth  century  and  early  half  of  the 
fourteenth.  The  beneficial  effects  of  a  tech- 
nically developed  law  had  been  inestimable 
for  England,  securing  for  her  a  considerable 
superiority  in  civil  order  over  Germany  and 
even  France.  But,  towards  the  middle  of 
the  fourteenth  century,  the  common  law 
was  in  danger  of  becoming  entangled  in 
professional  technicalities  and  losing  touch 
with  the  social  requirements  of  the  nation. 
The  free  handling  of  legal   institutions,   the 


216         COMMON-SENSE   IN   LAW 

creative  power  of  leading  judges  in  framing 
and  developing  rules  of  law,  began  to  de- 
generate; the  rigid  framing  of  the  writs  and 
the  sophistic  methods  of  pleading  hampered 
the  great  progressive  movement  which  had 
given  birth  to  the  remarkable  jurisprudence 
of  the  Courts  of  Henry  III  and  of  Edward  I. 
The  "  actions  on  the  case  "  inaugurated  by 
the  Statute  Westminster  II  had  not  quite 
borne  the  fruits  which  might  have  been 
expected  from  this  form  of  procedure.  It 
was  at  this  critical  period  that  the  Court  of 
Chancery  came  forward  with  fresh  impulses, 
under  the  influence  of  the  foreign  learning 
of  Canon  and  of  Roman  law,  and  supported 
by  the  recognition  of  conscience  as  one  of 
the  sources  of  legal  action.  I  need  not  go 
into  details  of  the  interesting  history  of 
Chancery  jurisdiction.  It  played  a  decisive 
part  in  modifying  the  status  of  servile 
peasantry  and  of  the  villeins,  in  creating 
trusts  and  in  protecting  informal  agreements. 
It  is  sufficient  for  my  present  purpose  to 
call  attention  to  the  first  of  these  points. 
Mediaeval  peasants,  the  so-called  villeins,  had 
been  deprived  of  protection  by  the  State 
in  their  dealings  with  their  lords.  If  any 
of  them   complained   of  being   ejected   from 


EQUITY  217 

his  tenure,  or  of  being  oppressed  by  arbitrary- 
exactions  on  the  part  of  the  lord,  he  was  met 
by  the  answer  that  the  King's  Courts  did 
not  interfere  in  matters  concerning  the  rela- 
tions between  lords  and  villeins.  Now  this 
state  of  affairs  was  altered  in  consequence 
of  a  change  of  views  in  the  Courts.  Some 
time  during  the  fifteenth  century,  royal 
judges  began  to  entertain  suits  brought  by 
peasants  against  their  lords.  The  problem 
is  when  and  how  this  change  was  brought 
about.  We  know  now  that  it  was  initiated 
by  the  exercise  of  equity  in  the  Court  of 
Chancery.  In  the  fifteenth  century  a  con- 
siderable number  of  cases  came  before  the 
Court  of  Chancery.  In  the  sixteenth  century 
the  same  business,  which  in  view  of  the 
number  of  copyholders  must  have  been  a 
lucrative  one,  came  before  the  common  law 
Courts.^ 

From  1439  onwards  a  stream  of  equitable 
jurisdiction  flows  out  from  the  Chancery  to 
secure  the  title  of  the  very  class  which  has 
hitherto  had  no  legal  title  at  all.  Tenure  in 
villeinage  becomes  copyhold. 

3.  It  is  unnecessary  in  a  sketch  of  general 

^  See  Tawney,  Agrarian  Problem  in  the  Sixteenth  Century, 
pp.  310,  etc. 


218         COMMON-SENSE   IN   LAW 

jurisprudence  to  trace  the  stages  of  the 
momentous  conflict  between  the  Courts  of 
common  law  and  the  Courts  of  Equity. 
This  subject  belongs  properly  to  the  history 
of  English  law.  But  what  I  should  like  to 
point  out  in  this  connection  is  the  fact  that 
in  spite  of  modern  attempts  to  harmonize 
equitable  and  legal  jurisdiction,  and  in  spite 
of  the  compromise  effected  after  centuries 
of  rivalry,  it  has  not  always  been  easy  to 
co-ordinate  the  action  of  both  principles. 
In  a  general  way  it  was  assumed  that  "  equity 
follows  the  law,"  and  that  the  novelties 
which  it  admits  are  derived  from  the  fact 
that  it  provides  remedies  in  cases  where  the 
common  law  does  not  grant  them.  This 
view  was,  for  instance,  fully  explained  by 
Lord  Hardwicke  in  Garth  v.  Cotton  (1753). 
Sometimes,  however,  an  antagonism  between 
the  Courts  actually  found  expression  in  pro- 
nouncements of  judges.  In  Dixon  v.  Gay  fere 
(1853)  the  Court  of  Chancery  took  a  line  in 
regard  to  the  legal  effects  of  possession  which 
was  avowedly  opposed  to  a  doctrine  admitted 
in  common  law  Courts.  The  King's  Bench 
retorted  in  Asher  v.  Whitlock  (1865)  with  a 
declaration  of  Chief  Justice  Cockburn  that  the 
decision  of  the  Master  of  the  Rolls  in  Dixon  v. 


EQUITY  219 

Gayfere,  however  right  in  equity,  was  not 
right  in  law.  The  Judicature  Acts  (1873-5) 
have  put  an  end  to  this  antagonism,  but 
the  difference  in  the  methods  of  juridical 
reasoning  are  still  existent  and  represent,  as 
it  were,  the  opposite  poles  of  practical  juris- 
prudence. 

The  antagonism  we  have  noticed  is  to  be 
attributed  not  merely  to  a  difference  of 
personal  opinions,  or  to  a  rivalry  of  institu- 
tions, but  rather  to  a  fundamental  difference 
of  methods.  In  one  system  the  centre  of 
gravity  lies  in  the  formulated  rule,  and  there- 
fore there  is  a  strong  tendency  to  sacrifice 
the  particular  to  the  general,  justice  to  cer- 
tainty :  while  in  the  other  there  is  a  more 
direct  quest  after  right  and  a  wide  discre- 
tionary power  on  the  part  of  the  judge  to 
draw  on  his  own  notions  of  what  is  fair  and 
just. 

Sir  G.  Jcssel,  Master  of  the  Rolls,  has  said 
[Re  HalleVs  Estate  (1880)] : 

"  The  rules  of  Equity  are  not,  like  the 
rules  of  the  common  law,  supposed  to  be 
established  from  time  immemorial.  It  is 
perfectly  well  known  that  they  have  been 
established    from   time  to    time  —  altered. 


220         COMMON-SENSE   IN   LAW 

improved  and  refined  from  time  to  time. 
In  many  cases  we  know  the  names  of  the 
Chancellors  who  invented  them.  No  doubt 
they  were  invented  for  the  purpose  of 
securing  the  better  administration  of  jus- 
tice, but  still,  they  were  invented.  Take 
such  things  as  these — the  separate  use  of  a 
■^married  woman,  the  restraint  on  alienation, 
the  modern  rule  against  perpetuities,  and 
the  rules  of  equitable  waste.  We  can  name 
the  Chancellor  who  first  invented  them,  and 
state  the  date  when  they  were  first  intro- 
duced into  equity  jurisprudence ;  and  there- 
fore in  cases  of  this  kind  the  older  prece- 
dents have  very  little  value.  The  doctrines 
are  progressive,  refined  and  improved,  and 
if  we  want  to  know  what  the  rules  of 
Equity  are,  we  must  look,  of  course,  rather 
to  the  more  modern  than  the  more  ancient 
cases." 

As  there  are  few  enacted  laws  in  primitive 
societies,  and  the  binding  tradition  of  case- 
law  is  not  much  developed  on  account  of 
the  difficulty  of  recording  precedents  and 
the  lack  of  professional  training  of  the  lawyers, 
the  province  of  discretionary  justice  is  natur- 
ally very  extensive,  and  legal  progress  consists 


EQUITY  221 

in  a  great  measure  in  the  substitution  of 
fixed  rules,  either  legislative  or  judge-made, 
for  this  fluctuating  state  of  the  law  But 
it  would  be  wrong  to  conclude  from  this 
process  that  the  sphere  of  legal  rules  is  con- 
stantly growing  at  the  expense  of  the  sphere 
of  discretionary  justice.  A  movement  in  the 
opposite  direction  is  also  noticeable  in  all 
healthy  communities  possessed  of  a  strong 
feeling  for  living  law.  Strict  legal  rules  are 
supplemented  by  allowing  a  wide  margin  of 
discretion  to  the  judges  for  their  construction^ 
development,  adaptation  to  circumstances, 
and  even  for  their  gradual  organic  modifica- 
tion. Thus  equity  appears  not  only  as  the 
most  ancient  but  also  as  the  most  modern 
form  of  legal  action.  The  German  Civil  Code 
of  1900  very  often  employs  general  state- 
ments of  various  legal  principles,  with  a  view 
to  their  differentiation  by  practice.  It  com- 
monly refers,  for  instance,  to  good  faith 
{Treu  und  Glauben),  business  practice,  etc. 
Any  attempt  to  get  rid  of  this  contradictory 
tendency  in  the  evolution  of  law  would 
speedily  reduce  legal  systems  to  hopeless 
formalism  and  intolerable  pedantry.  The 
great  problem  consists  in  keeping  the  func- 
tion   of   this    important    element    of    flexible 


222         COMMON-SENSE   IN   LAW 

equity  proportionate  to  the  elements  of 
certainty  and  stable  tradition  which  are 
characteristic  of  the  purely  legal  side  of  the 
evolution.  A  capricious  treatment  of  statutes 
and  leading  precedents  by  the  Courts  would 
prove  quite  as  destructive  of  Justice  as  a 
^  rigid  application  of  obsolete  rules.  The  sense 
^  caution  in  this  respect  is  sometimes 
strongly  expressed  by  jurists.  Application 
of  law  in  this  as  in  so  many  other  cases  is 
a  matter  not  only  of  exact  knowledge,  but 
of  art  :  all  depends  on  the  sense  of  due  pro- 
portion in  a  wise  combination  of  two  distinct 
tendencies. 

4.  I  should  like  in  conclusion  to  illustrate 
my  view  by  examples  borrowed  from  Roman 
and  modern  English  law  regarding  the  three 
principal  functions  of  equity — the  help  afforded 
by  the  powers  of  individualization,  the  supple- 
menting of  gaps  in  law  and  the  correction 
of  harsh  consequences  of  legal  rules.^  The 
most  remarkable  instances  of  equitable  in- 
dividualization— that  is,  the  adaptation  of  a 
general  rule  to  particular  circumstances — are 
given  by  the  responsa  of  the  great  Roman  jurists 
of  the  second  century  b.c.  To  what  far-reach- 
ing consequences  this  power  of  adaptation 
^  Jits  adjuvandi,  jus  supplendi,  jus  corrigendi. 


EQUITY  22a 

may  lead  can  be  seen  from  the  interpretation 
of  testaments  and  contracts.  Roman  Law- 
had  by  the  end  of  the  RepubUc  reached  the 
stage  when  the  intention  of  the  testator  and 
of  the  contracting  party  is  assumed  to  be 
the  principal  factor  in  the  constitution  of 
the  testament  and  of  the  contract.  But  in 
connection  with  this  principle  peculiar  diffi- 
culties arise  as  regards  the  right  interpretation 
of  such  intentions.  The  ancient  formal  rule 
w^as  that  the  testator's  or  contracting  party's 
actual  words  formed  the  basis  of  the  law  in 
the  particular  case.i  But  this  rule,  con- 
venient and  simple  though  it  appears,  could 
not  always  be  applied.  Words  might  be 
obscure  and  ambiguous;  the  jurists  had  to 
look  for  their  sense,  and  in  doing  this  they 
had  to  be  guided  by  two  sets  of  considerations* 
To  begin  with,  they  might  try  to  ascertain 
by  an  attentive  study  of  the  context  and  of 
probable  intentions  what  the  testator  or 
contracting  partj-^  had  wanted  to  say.  Or 
else  they  might  try  to  discover  what  in  the 
given  circumstance  the  testator  or  contract- 
ing party  might  be  reasonably  supposed  to 
have  intended  or  ordained.  Their  minds 
had  to  work  in  one  of  these  two  directions 
1  Uti  lingua  nuncupasset  ita  ius  esto. 


224         COMMON-SENSE   IN   LAW 

either  by  reconstructing  the  intention  of  the 
party,  or  by  imputing  to  him  reasonable 
motives. 

An  interesting  case  occurred  in  Rome  about 
A.D.  150.  One  Valerius  Nepos  had  made  a 
will  in  which,  according  to  law,  he  had  insti- 
tuted a  certain  person  his  heir,  and  added  a 
number  of  legacies  to  various  friends,  as 
well  as  a  direction  that  certain  slaves  should 
be  emancipated.  After  a  time,  however,  he 
changed  his  mind  and  struck  out  the  name 
of  the  heir.  At  law,  this  invalidated  the 
whole  will,  and  the  property  of  the  deceased 
was  claimed,  in  the  absence  of  kindred,  by 
the  Treasury.  The  case  came  up  for  decision 
before  the  tribunal  of  the  Emperor  himself, 
the  great  Antoninus  Pius.  At  first  sight, 
there  seemed  to  be  no  reason  for  resisting 
the  claim  of  the  Treasury  :  but  the  various 
parties  interested  in  the  will  were  represented 
by  advocates,  and  the  following  discussion  is 
recorded  to  us  : 

"  Zeno  :  '  I  beg.  Lord  Emperor,  that  you 
will  hear  me  with  patience  :  what  is  your 
decision  with  regard  to  the  legacies  ?  '  The 
Emperor  :  '  Do  you  think  that  if  he  struck 
out  the  names  of  the  heirs  he  could  have 


EQUITY  225 

desired  the  will  to  stand  ?  '  Priscianus, 
counsel  for  Leo  [evidently  one  of  the 
beneficiaries  under  the  will]  :  '  It  was  only 
the  heirs  Avhose  names  were  struck  out.' 
Longinus,  counsel  for  the  Treasury :  '  No 
will  which  does  not  appoint  an  heir  can 
be  held  valid.'  Priscianus  :  '  The  testator 
did  actually  emancipate  some  of  his  slaves 
and  bequeath  certain  legacies.'  The  Em- 
peror commanded  everybody  to  leave  the 
room  in  order  that  he  might  consider  the 
question.  When  the  parties  were  read- 
mitted, he  said  :  '  This  seems  to  be  a  case 
for  humane  interpretation;  we  hold  there- 
fore that  Nepos  wished  to  annul  only  those 
directions  which  he  actually  struck  out.'  " 

It  is  clear  from  the  narrative  that  the 
Emperor  was  moved  to  give  his  decision  by 
two  considerations.  He  thought  that  it  had 
been  the  intention  of  the  testator  to  remove 
the  name  of  the  instituted  heir,  but  to  retain 
the  dispositions  in  respect  of  legacies  and 
emancipations.  But  there  was  another  point : 
the  enlightened  opinion  of  the  time  was 
"  in  favour  of  liberty,"  and  the  Emperor 
was  anxious  that  the  freedmen  should  «not 
be    disappointed.     Accordingly,    after    some 


226         COMMON-SENSE   IN   LAW 

hesitation,  he  resolved  to  overlook  the  flaw  in 
the  form  of  the  will,  and  to  interpret  it  in 
the  spirit  of  a  "  humane  "  equity. 

In  another  characteristic  set  of  cases 
ordinary  rules  were  individualized  by  Roman 
lawyers  on  the  principle  that  in  case  of  too 
vague  an  indication  by  the  law,  parties  were 
to  act  in  regard  to  each  other  as  befits 
"  honourable  men  "  {ut  inter  honos  viros  agi 
oporteret). 

5.  The  second  case  in  which  judges  have  to 
step  in  and  apply  considerations  of  equity 
and  justice  arises  when  there  are  obvious 
gaps  in  the  law.  Such  cases  will  often 
occur  in  any  system  of  law,  and  we  are  by 
no  means  insured  against  them  by  our 
civilization  and  the  complexity  of  our  legal 
arrangements,  because  new  and  entirely  un- 
foreseen circumstances  arise  every  day  in 
connection  with  the  immense  advance  of 
technical  invention  and  of  social  changes, 
A  great  deal  of  statute  law  has  been,  of 
course,  enacted  after  the  introduction  of 
modern  scientific  improvements,  but  statutes 
come  generally  a  long  while  after  the  track 
for  them  has  been  cleared  by  business,  and 
collisions  of  interests  which  occur  before 
their  promulgation  have  to  be  decided  on  the 


EQUITY  227 

strength  of  general  considerations.  Courts 
are  naturally  inclined,  when  they  meet  with 
gaps  in  the  law,  to  fill  them  up  by  the  help 
of  a  logical  extension  of  existing  doctrines; 
but  this  method  does  not  lead  far  in  the 
case  of  entirely  new  departures,  and  progress 
is  often  achieved  in  such  circumstances  only 
after  a  good  deal  of  groping  in  the  dark.  In 
the  'nineties,  there  was  an  attempt  by  English 
judges  to  assimilate  motors  to  traction- 
engines  for  the  purposes  of  law  :  they  had 
nothing  to  guide  them  in  the  treatment  of 
cases  concerning  motors  but  the  rules  in 
regard  to  traction-engines,  and  even  after 
the  Locomotives  Act  of  1898  motor-car  traffic 
was  subjected  to  rules  as  to  speed  and  manage- 
ment which  were  very  ill-suited  to  it.  In  this 
way,  before  the  passing  of  the  Motor  Cars  Act, 
1903,  magistrates  were  thrown  very  much  on 
their  discretion  in  regard  to  motor-car  traffic. 
6.  Lastly,  we  have  to  consider  cases  when 
equity  takes  up  a  standpoint  which  leads 
to  downright  alterations  of  existing  bad  law; 
that  is,  when  it  acts  therefore  as  a  factor 
of  correction.  The  history  of  Roman  Law 
again  gives  conspicuous  instances  of  the 
gradual  amelioration  of  grossly  unjust  law 
by  the  conscious  and  consistent  interference 


228         COMMON-SENSE   IN   LAW 

of  the  Courts.  Some  of  the  famous  fictions 
which  counteracted  the  application  of  obsolete 
rules  were  produced  in  this  way.  In  strict 
law  a  Roman  spinster  had,  in  default  of  a 
testamentary  guardian,  to  be  under  the 
guardianship  of  her  father  or  of  the  nearest 
agnate,  i.  e.  of  the  nearest  male  relation  in 
the  male  line.  This  meant  that  in  effect 
she  never  came  of  age  and  could  not  deal 
with  her  property  as  she  chose.  But  in 
time  it  was  realized  by  public  opinion  that 
such  a  state  of  things  produced  great  hard- 
ship. The  Courts  managed  to  modify  the 
law  without  formally  abrogating  the  rule. 
They  achieved  this  result  by  protecting 
women  who  had  contracted  a  fictitious 
marriage  with  some  old  man  from  any 
attempt  on  the  part  of  this  fictitious  husband 
to  exercise  his  rights  in  practice.  It  came 
to  this,  that  the  woman  got  rid  of  the  guardian- 
ship of  agnates  by  means  of  the  marriage 
and  was  not  allowed  by  the  Courts  to  lapse 
into  subjection  to  the  husband.  A  similar 
process  took  place  in  the  history  of  English 
law  as  regards  the  property  of  married 
women.  At  common  law  "  Marriage  was 
an  assignment  of  a  wife's  property  rights  to 
her  husband  during  the  latter' s  life."     Public 


EQUITY  229 

opinion  became  alive  to  the  unfairness  and 
harshness  of  this  rule  in  the  eighteenth 
century.  The  Court  of  Chancery  used  its 
doctrines  of  trusts  to  modify  the  obnoxious 
rules  and  to  enable  "  a  married  woman  to  t 
hold  property  independently  of  her  husband, 
and  to  exert  over  this  property  the  rights 
which  could  be  exercised  by  a  man  or  an 
unmarried  woman." 

This  success  was  achieved,  after  the  manner 
of  the  best  judge-made  law,  by  the  systematic 
and  ingenious  development  of  one  simple 
principle,  namely,  that  even  though  a  person 
might  not  be  able  to  hold  property  of  his 
own,  it  might  be  held  for  his  benefit  by  a 
trustee,  whose  sole  duty  it  was  to  carry  out 
the  terms  of  the  trust.  Hence,  as  regards 
the  property  of  married  women,  came  the 
following  results,  which  were  attained  only 
by  degrees. 

Property  given  to  a  trustee  for  the  "  separate 
use  "  of  a  woman,  whether  before  or  after 
marriage,  is  her  separate  property,  that  is, 
it  is  property  which  does  not  in  any  way 
belong  to  the  husband.  At  common  law, 
indeed,  it  is  the  property  of  the  trustee,  but 
it  is  property  which  he  is  bound  in  equity 
to  deal  with  according  to  the  terms  of  the 


230         COMMON-SENSE   IN   LAW 

trust,  and  therefore  in  accordance  with  the 
wishes  or  directions  of  the  woman.  Here 
we  have  constituted  the  "  separate  property," 
or  the  "  separate  estate "  of  a  married 
woman. 

If,  as  might  happen,  property  was  given 
to  or  settled  upon  a  woman  for  her  separate 
use,  but  no  trustee  were  appointed,  then  the 
Court  of  Chancery  further  estabhshed  that 
the  husband  himself,  just  because  he  was  at 
common  law  the  legal  owner  of  the  property, 
must  hold  it  as  trustee  for  his  wife.  The 
Court  of  Chancery  having  thus  created 
separate  property  for  a  married  woman,  by 
degrees  worked  out  to  its  full  result  the  idea 
that  a  trustee  must  deal  with  the  property 
of  a  married  woman  in  accordance  with  her 
directions.  Thus  the  Court  gave  her  the 
power  to  give  away  or  sell  her  separate 
property,  as  also  to  leave  it  to  whomsoever 
she  wished  by  will,  and  further  enabled  her 
to  charge  it  with  her  contracts.  But  equity 
lawyers  came  to  perceive,  somewhere  towards 
the  beginning  of  the  nineteenth  century,  that 
though  they  had  achieved  all  this,  they  had 
not  given  quite  sufficient  protection  to  the 
settled  property  of  a  married  woman.  Her 
very  possession  of  the  power  to  deal  freely 


EQUITY  231 

with  her  separate  property  might  thwart  the 
object  for  which  that  separate  property  had 
been  created;  for  it  might  enable  a  husband 
to  get  her  property  into  his  hands.  Who 
could  guarantee  that  Barry  Lyndon  might  not 
persuade  or  compel  his  wife  to  make  her 
separate  property  chargeable  with  his  debts, 
or  to  sell  it  and  give  him  the  proceeds  ? 
This  one  weak  point  in  the  defences  which 
equity  had  thrown  up  against  the  attacks 
of  the  enemy  was  rendered  unassailable  by 
the  astuteness,  as  it  is  said,  of  Lord  Thurlow.^ 
He  invented  the  provision,  introduced  con- 
stantly since  his  time  into  marriage  settle- 
ments or  wills,  which  is  known  as  the  "  re- 
straint on  anticipation."  This  clause,  if  it 
forms  part  of  the  document  settling  property 
upon  a  woman  jor  her  separate  use,  makes  it 
impossible  for  her  during  marriage  either  to 
alienate  the  property  or  to  charge  it  with  her 
debts.  Whilst  she  is  married  she  cannot 
in  short,  in  any  way  anticipate  her  income, 
though  in  every  other  respect  she  may  deal 
with  the  property  as  her  own. 

Eventually  in  this,  as  in  many  other  cases, 
the  working  out  of  equitable  remedies  pre- 
pared the  way  for  definite  legislation,  which 

^  See  Dicey,  Law  and  Opinion  in  England,  p.  375  seq. 


232         COMMON-SENSE   IN   LAW 

was  effected  by  the  Married  Women's  Property 
Acts,  1882  and  1893. 

We  may  sum  up  by  saying  that  equity  as  a 
method  of  judicial  discretion  is  inseparable 
from  a  complex  and  efficient  system  of  law. 
It  is  not  necessary  that  it  should  be  exercised 
by  special  courts,  and  it  does  not  disappear 
when  special  tribunals  of  equity  are  merged 
by  a  comprehensive  reform  of  the  Judicature. 
The  method  will  retain  its  value  and  will  have 
to  be  exercised  in  order  to  supplement  the 
rigidity  of  prospective  general  rules. 

We  have  now  examined  each  of  the  four 
sources  of  positive  law — legislation,  custom, 
judicial  precedents  and  equity.  In  practice, 
important  questions  may  arise  as  to  the  way 
in  which  these  different  sources  have  to  be 
co-ordinated.  A  general  du-ection  as  to  the 
principles  which  should  govern  this  process 
is  to  be  found  in  the  following  clause  (cl.  1) 
of  the  Swiss  Civil  Code  of  1907 — in  many 
respects  the  best  of  modern  codes.  "  Legal 
enactments  govern  all  subjects  which  they 
concern  either  in  express  words  or  by  inter- 
pretation. When  there  is  no  statutory  rule 
applicable  to  the  case,  the  judge  ought  to 
decide  according  to  customary  law.     In  the 


EQUITY  233 

absence  of  a  custom  bearing  on  the  point  he 
ought  to  decide  in  conformity  with  a  rule 
which  he  would  have  formulated  if  he  had 
been  a  lawgiver.  In  doing  so  he  ought  to 
follow  the  views  established  by  jurisprudence 
and  legal  precedents." 


CHAPTER   IX 

THE    LAW    OF   NATURE 

1.  All  legal  rules  are  supposed  to  be 
reasonable  and  natural;  even  the  worst 
have  probably  some  considerations  of  reason 
to  support  them,  and  the  more  important 
doctrines  of  a  legal  system  generally  corre- 
spond to  some  deeply-rooted  requirements 
of  society.  Even  slavery  was  justified  by 
the  Greeks  on  grounds  of  the  natural  in- 
feriority of  barbarians  and  of  vanquished 
nations.  In  this  way  it  may  be  rightly 
said  that  important  rules  have  a  twofold 
justification,  as  legal  commands  and  as 
reasonable  propositions.  But  by  saying  so 
much  we  do  not  mean  that  there  can  be  a 
proper  system  of  law  constructed  on  the 
basis  of  pure  reason  or  of  "  human  nature," 
as  opposed  to  law  produced  by  legislation, 
judicial  decisions  or  custom.  Yet  this  view 
has  been  put  forward  again  and  again  in  the 
course  of  history,  and  it  has  had  a  great 
influence  in  shaping  the  development  of  law. 
234 


THE   LAW   OF   NATURE  235 

It  has  been  said  rather  contemptuously  that 
the  law  of  nature  is  "  jurisprudence  in  the 
air  "  :  and  the  definition  need  not  be  repudi- 
ated by  supporters  of  this  kind  of  law,  for 
after  all  the  air  constitutes  one  of  the  most 
important  elements  of  life,  both  for  good  and 
for  evil. 

The  Greeks  were  struck  by  the  great  variety 
of  positive  laws,  and  asked  themselves  whether 
justice  and  right  were  only  casual  arrange- 
ments changing  with  circumstances  and  times^ 
or  whether  behind  this  confusing  variety  there 
existed  perennial  notions  of  right  and  wrong, 
justice  and  injustice.  While  sophists  and 
sceptics  held  the  first  view,  idealistic  philo- 
sophers from  the  time  of  Socrates,  Plato  and 
Aristotle  maintained  the  second.  In  contrast 
with  shifting  positive  rules,  they  spoke  of 
unwritten  law  ingrained  in  the  heart  of  man, 
of  a  common  law  recurring  among  different 
tribes,  of  a  law  of  nature  which  reasonable 
creatures  were  everywhere  bound  to  recognize ; 
and  in  Xenophon's  reminiscences  of  Socrates 
we  read  that  the  family  relations  between 
man  and  wife,  parents  and  children,  were 
cited  as  concrete  examples  of  these  ever- 
recurring  rules  of  the  law  of  nature. 

These  were  speculations  of  philsophers,  but 


236         COM^ION-SENSE   IN   LAW 

the  great  practitioners  of  law  in  Rome  en- 
dorsed them  with  their  authority.  They  had 
to  deal  with  numberless  legal  enactments  and 
customs  over  which  their  tribunals  exercised 
sovereign  authority.  It  was  not  a  speculative, 
but  an  actual  problem  for  their  praetors  and 
proconsuls  to  reduce  this  heterogeneous  mass 
to  unity  and  reasonable  order.  In  this  way 
the  question  of  the  moral  background  to 
changing  laws  arose  in  full  force,  and  the 
Romans  eagerly  took  up  the  threads  of  Greek 
doctrine  about  a  law  of  nature,  as  the  reason- 
able basis  of  all  particular  laws  and  more 
especially  of  the  common  law  of  the  empire. 
Ulpian  was  inclined  to  widen  the  boundaries 
of  this  law  of  nature  so  as  to  include  even 
animals  :  perhaps  he  took  his  clue  in  this 
respect  from  the  teaching  of  the  Pythagoreans, 
for  whom  there  was  no  gulf  between  animals 
and  man.^  Others  contented  themselves  with 
building  on  the  foundations  of  the  rational 
nature  of  man,  and  from  this  point  of  view 
treated  a  number  of  legal  rules  as  necessary 
deductions  from  reason. 

The   jurist  Paul  remarks  :    "As  leases  are 
suggested  by  nature  itself  and  are  to  be  found 

^  A  passage  in  Xenophon's  Reminiscences  of  Socrates 
may  have  suggested  his  examples  to  him. 


THE   LAW   OF   NATURE  237 

in  the  law  of  all  nations,  a  particular  form 
of  words  is  not  necessary  for  their  validity, 
but  only  consent.  The  same  holds  good  in 
regard  to  sale."  Wardship,  again,  is  char- 
acterized by  Gaius  {circ.  a.d.  150)  as  an 
institution  founded  on  natural  reason,  while 
the  compilers  of  the  Institutes  under  Justinian 
also  speak  of  natural  law  in  this  case.  (Gaius, 
I,  189  :    Inst.  I,  20,  6.) 

The  tendency  of  the  doctrine  was,  however, 
not  suggested  merely  by  practical  considera- 
tions :  its  strongest  elements  were  derived 
from  philosophical  ethics.  Men  like  Papinian 
and  Paul,  Antoninus  Pius,  Marcus  Aurelius, 
were  under  the  sway  of  stoicism  :  they  saw 
and  worshipped  the  rule  of  nature  in  the  world 
at  large;  little  wonder  that  they  were  con- 
vinced that  reason  and  right  were  also  the 
voice  of  nature,  the  clearest  manifestation  of 
divine  power  in  the  world. 

In  another  setting,  the  same  idealistic 
construction  is  observed  in  mediaeval  juris- 
prudence where  it  arose  under  the  influence 
of  Christianity  and  of  the  Church.  Though 
according  to  the  teaching  of  St.  Augustine, 
the  City  of  God  is  in  heaven  and  the  city  of 
the  world  is  a  creation  of  robbers,  yet  the 
road  to  the  City  of  God  lay  through  this  world, 


238         COMMON-SENSE   IN   LAW 

and  mankind  had  to  prepare  itself  for  future 
life  by  making  the  best  of  the  time  of  trial 
on  earth.  God  has  not  forsaken  mankind  in 
this  trial :  He  has  revealed  His  law  to  them 
and  implanted  it  in  their  hearts  as  conscience 
and  reason.  The  Commonwealths  of  the 
earth  build  up  laws  of  their  own  which  partly 
serve  the  purpose  of  the  moral  education  of 
men  and  partly  reflect  the  selfish  and  sinful 
purposes  of  rulers,  but  in  case  of  conflict 
men  ought  to  conform  to  the  eternal  law  of 
nature  of  which  the  Church  is  the  principal 
interpreter. 

Again,  after  the  revival  of  learning  and  of 
secular  culture,  in  the  sixteenth,  seventeenth, 
and  eighteenth  centuries,  philosophers  de- 
duced a  theory  of  law  from  a  few  principles 
of  reason,  in  the  same  way  as  they  con- 
structed systems  of  metaphysics  and  ethics, 
of  politics  and  of  natural  philosophy.  With 
Kant  the  theory  of  the  law  of  reason  reached 
its  highest  point. 

2.  Sometimes  attempts  have  been  made  to 
recognize  reason  as  a  source  of  positive  law 
both  in  ancient  and  modern  times.  The 
Austrian  Code  (1811),  for  examie,p  contains 
the  following  clause  :  "  When  a  case  cannot 
be    decided    in    accordance    either    with    the 


THE   LAW   OF   NATURE  239 

words  or  the  spirit  of  a  law,  the  Court  shall 
take  into  consideration  similar  cases  decided 
by  law,  as  well  as  the  motives  which  suggested 
other  laws  of  the  same  kind.  Should  the  case 
still  remain  doubtful,  it  shall  be  decided  in 
accordance  with  the  law  of  nature,  and  with 
due  regard  to  the  circumstances  of  the 
case  diligently  collected  and  thoroughly 
considered." 

Attempts  of  this  kind  to  give  the  theory 
of  the  law  of  nature  a  direct  bearing  on  the 
practice  of  Courts  have  not  been  successful, 
while,  on  the  other  hand,  the  indirect  influence 
of  such  theories  in  affecting  the  opinions  of 
judges  and  legislators  has  been  very  great. 
The  mitigation  of  slavery  in  the  Roman 
Empire,  e.g.  may  be  traced  to  a  change  of 
views  expressed,  among  other  things,  in  the 
proposition  that  men  are  free  by  nature  and 
that  slavery  was  introduced  by  the  jus 
gentium,  the  positive  law  common  to  most 
nations  (as  distinct  from  the  jus  naturale,  or 
natural  law). 

In  the  same  way  doctrines  based  on  the 
law  of  nature  have  had  a  powerful  influence 
on  the  formation  of  International  Law,  on 
the  reforms  of  public  law  in  a  democratic 
direction  effected  by  means  of  the  notion  of 


240         COMMON-SENSE   IN   LAW 

contract,  and  on  the  radical  alteration  of  the 
law  of  status  by  the  doctrine  of  equality  before 
the  law. 

There  can  be  no  doubt,  for  instance,  that 
doctrines  about  the  "  rights  of  man,"  what- 
ever may  be  thought  of  their  concrete  formu- 
lation, have  exerted  a  potent  influence  on 
contemporary  legal  conceptions,  and  have 
themselves  been  derived  from  speculative 
doctrines  of  natural  jurisprudence. 

In  English  courts,  references  to  the  law  of 
nature  have  never  been  favourably  con- 
sidered :  but  the  indirect  influence  of  doctrines 
based  on  it  has  been  felt.  In  the  famous  case 
of  the  negro  slave  Somersett,  which  was  de- 
cided in  1771  (shortly  before  the  secession  of 
the  colonies),  the  slave  was  claimed  by  his 
master,  a  Virginian  planter,  while  in  England. 
Hargrave,  counsel  for  Somersett,  directed 
part  of  his  argument  against  the  assumption 
that  slavery  could  be  justified  by  the  law 
of  nature.  He  adopted  Locke's  reasoning 
that  contract  could  not  be  the  origin  of 
slavery,  because  a  man  cannot  divest  himself 
of  his  right  to  life  or  to  personal  freedom. 
In  regard  to  conquest  and  punishment  as 
possible  origins  of  slavery,  Hargrave  main- 
tained that  at  the  utmost  they  might  justify 


THE   LAW   OF  NATURE         241 

the  enslaving  of  criminals  and  of  vanquished 
enemies.  But  on  no  account  were  they 
sufficient  to  explain  slavery  inherited  by 
birth.  In  giving  the  judgment  which  de- 
barred the  planter  from  asserting  a  right  of 
mastery  over  the  slave,  Lord  Mansfield  de- 
clared that  "  slavery  ...  is  so  odious,  that 
nothing  can  be  suffered  to  support  it,  but 
positive  law.  Whatever  inconveniences,"  he 
continued,  "  may  follow  from  the  decision,  I 
cannot  say  this  case  is  allowed  or  approved 
by  the  law  of  England;  and  therefore  the 
black  must  be  discharged." 

Another  case  in  which  the  atmosphere  of 
enlightened  rationalism  characteristic  of  the 
eighteenth  century  is  strongly  felt  is  Omychund 
V.  Barker  (1744),  in  which  Lord  Hardwicke 
laid  it  down  that  heathens  might  take  a  legally 
valid  oath  according  to  the  ceremonies  of 
their  religion,  because  the  essence  of  an  oath 
is  the  belief  in  a  Supreme  Being  capable 
of  rewarding  and  punishing,  and  not  the 
particular  forms  prescribed  by  Christian 
confessions. 

Thus  the  law  of  nature  or  reason  has 
operated  as  a  literary,  but  not  as  a  direct, 
source  of  law.  It  is  a  creation  of  juris- 
prudence and  philosophy.     It  is  no  more  a 


242         COMMON-SENSE   IN   LAW 

source  of  law  in  the  technical  sense  of  the 
term  than  the  teaching  of  pandectists  or  of 
modern  exponents  of  legal  rules.  The  fact 
that  it  has  been  a  most  powerful  ferment  in 
the  evolution  of  legal  ideas  does  not  make  it 
a  code  to  the  clauses  of  which  judges  can  turn 
in  the  administration  of  justice. 

It  cannot  be  treated  as  a  code  for  this  simple 
reason,  amongst  others,  that  it  is  not  constant. 
In  reviewing  the  course  of  its  history,  we  can 
easily  perceive  that  in  all  matters  bearing  on 
concrete  problems  of  law  it  is  subject  to 
changes  quite  as  important,  if  not  so  frequent 
and  casual,  as  the  changes  of  positive  law. 
Can  one  speak,  for  instance,  of  a  family  law 
based  on  nature  or  reason  ?  Would  it  be 
based  on  polygamy,  or  on  strict  monogamy 
as  in  the  Canon  Law,  or  on  contractual  mono- 
gamy, as  at  present,  or  on  free  selection  of 
mates,  as  may  conceivably  be  the  case  two 
or  three  centuries  hence,  or  on  eugenic 
selection  by  public  authority,  as  some  very 
advanced  sociologists  are  urging  ?  And  is 
the  relation  between  parents  and  children 
clearly  prescribed  by  the  law  of  nature  ? 
Children  have  been  in  charge  of  their  mothers 
and  under  the  absolute  sway  of  their  fathers, 
and  at  the  educational  disposal  of  the  city 


THE   LAW   OF   NATURE  243 

state,  and  in  the  temporary  care  of  both 
parents.  Who  knows  whether  the  social 
element  may  not  again  prevail  over  the  private 
organization  of  education  ?  Is  property  likely 
to  prove  an  institution  of  a  perennial  law  of 
nature  ?  The  origins  of  property  have  been 
communistic;  in  its  further  history  it  has 
been  treated  more  and  more  from  the  private, 
the  individualistic  point  of  view;  it  cannot 
be  disputed  that  socialistic  ideas  are  rapidly 
gaining  ground  in  regard  to  it,  that  organized 
society  claims  a  larger  and  increasing  share  in 
its  distribution  and  use;  can  it  be  main- 
tained that,  say,  the  nationalization  of  the 
land  or  the  monopoly  of  means  of  production 
by  the  State  would  be  against  the  law  of 
nature  ?  People  may  consider  such  measures 
wrong,  dangerous  or  mischievous,  but  they 
cannot  be  rejected  by  a  simple  appeal  to 
eternal  tenets  of  the  law  of  reason.  Again, 
punishment  has  certainly  been  regarded  as  a 
natural  sequel  to  crime  by  all  commonwealths, 
although  most  exalted  moralists  would  have 
preferred  to  reserve  punishment  to  God  and 
to  treat  crime  as  a  sin.  But  even  in  the 
actual  practice  of  the  law,  are  people  agreed 
about  the  aim  and  scope  of  punishment? 
Is  it  a  means  of  repression  and  amputation 


244         COMMON-SENSE   IN   LAW 

(Plato)  ?  Is  it  a  measure  of  educational 
discipline  (Aristotle)  ?  Is  it  principally  a 
deterrent  (Bentham)  ?  Is  it  a  necessary- 
moral  atonement  (Kant)  ?  Is  it  a  measure 
of  medical  treatment  (Lombroso)  ?  In  a  word, 
one  has  not  to  go  far  to  perceive  that  the 
contents  of  the  law  of  nature  are  shifting, 
and  that  it  would  be  impossible  to  reduce  it 
to  a  unified  and  permanent  code. 

Does  this  mean  that  the  law  of  nature  or 
reason  is  a  fanciful  and  absurd  misconcep- 
tion ?  I  am  afraid  the  absurdity  lies  in 
supposing  that  a  doctrine  which  has  played 
such  a  part  in  the  history  of  the  world,  which 
has  appealed  to  minds  of  men  of  widely  con- 
trasting dispositions  in  entirely  different  cir- 
cumstances, does  not  rest  on  solid  foundations. 
Nor  is  it  difficult  to  see  what  these  foundations 
are.  The  law  of  nature  is  an  appeal  from 
Caesar  to  a  better  informed  Caesar.  It  is  an 
appeal  by  society  at  large,  or  by  the  best 
spirits  of  a  given  society,  not  against  single 
decisions  or  rules,  but  against  entire  systems 
of  positive  law.  Legislators  are  called  in  to 
amend  law  by  separate  statutes ;  judges  may 
do  a  great  deal  in  amending  the  law  by  de- 
cisions in  individual  cases,  but  the  wisdom  of 
legislators  and  the  equity  of  judges  are  by 


THE   LAW   OF   NATURE  245 

themselves  powerless  against  systems,  because 
they  start  from  a  recognition  of  the  authority 
of  positive  law  in  general.  And  yet  law. 
being  a  human  institution,  ages  not  only  in 
its  single  rules  and  doctrines,  but  in  its  national 
and  historical  setting,  and  the  call  for  puri- 
fication and  reform  may  become  more  and 
more  pressing  with  every  generation.  Public 
opinion,  then,  turns  from  reality  to  ideals- 
Speculation  arises  as  to  the  essentials  of  law 
as  conceived  in  the  light  of  justice.  Of  course 
these  conceptions  of  justice  are  themselves 
historical,  but  they  are  drawn  not  from  the 
complicated  compromises  of  positive  law  but 
from  the  simpler  and  more  scientific  teaching 
of  philosophical  doctrine.  Thus  the  contents 
of  the  law  of  nature  vary  with  the  ages,  but 
their  aim  is  constant,  it  is  justice ;  and  though 
this  species  of  law  operates  not  in  jDOsitive 
enactments,  but  in  the  minds  of  men,  it  is 
needless  to  urge  that  he  who  obtains  com- 
mand over  minds  will  in  the  end  master  their 
institutions. 

Reform  and  revolution  cannot  be  produced 
by  mere  doctrines :  material  forces  and 
circumstances  have  to  be  taken  into  account 
as  well :  moral  lethargy  may  prove  too  great, 
the  body  politic  too  decrepit  or  too  corrupt 


246         COMMON-SENSE   IN   LAW 

for  sweeping  changes.  But  the  spread  of 
doctrine  claiming  to  pronounce  judgment  on 
positive  law  for  the  sake  of  justice  is  surely 
a  force  not  to  be  disregarded  or  slighted  by 
practical  men. 

It  is  significant  that  we  are  witnessing  a 
revival  of  appeals  to  the  law  of  nature  in  our 
own  time.  It  comes  from  two  sides.  On  the 
one  hand  there  is  a  widely  spreading  con- 
viction that  existing  systems  of  law  are 
getting  out  of  touch  with  fundamental  re- 
quirements of  modern  society.  It  is  not 
necessary  nowadays  to  be  a  socialist  in  order 
to  feel  that  the  existing  systems  of  positive 
law,  which  have  sprung  into  being  under  the 
influence  of  feudal  conceptions  and  of  theories 
of  free  contract,  will  have  to  be  largely  trans- 
formed in  order  to  meet  the  requirements  of 
rising  democracy.  Schemes  of  reform  and 
attempts  at  remedial  legislation  are  being 
initiated  everywhere;  and  though  it  would 
be  out  of  the  question  for  us  to  review  such 
schemes  and  attempts  in  detail,  we  may 
notice  that  their  growth  undoubtedly  testifies 
to  a  change  in  the  leading  conceptions  of  law. 

There  is  another  more  modest  contention, 
the  admission  of  which,  however,  would  un- 
doubtedly strengthen  the  hands  of  partisans 


THE   LAW   OF   NATURE  247 

of  reform.  It  is  represented  conspicuously 
by  certain  modern  followers  of  Kant,  headed 
by  Stammler.  Though  granting  that  a  law 
of  nature  as  a  set  of  perennial  rules  does  not 
exist,  they  contend  that  every  age  ought  to 
have  its  own  law  of  nature,  or  rather  its  own 
"  right-law  "  by  the  side  of  its  positive  law. 
That  is,  they  maintain  that  rules  of  positive 
law  have  to  justify  their  existence  by  reference 
to  standards  set  up  by  the  philosophical 
doctrine  of  the  age.  If  laws  are  found  wanting 
from  this  point  of  view,  they  ought  to  be 
corrected  either  by  legislation  or  by  judicial 
practice.  Stammler's  own  attempt  to  formu- 
late four  standards  by  which  "  right-law " 
ought  to  be  estimated  cannot  be  said  to  be 
successful.  It  is  heavily  dogmatic,  and  leads 
to  mere  scholasticism.  But  the  main  view 
that  in  an  enlightened  age  positive  law  has 
to  be  estimated  by  the  standard  of  moral 
ideals  seems  to  be  incontestable. 

I  may  add  that  in  thus  pleading  for  wider 
equity  and  greater  latitude  in  interpreting 
and  applying  law,  Stammler  does  not  stand 
by  any  means  alone.  His  view  is  sub- 
stantiated by  the  spirit  and  acceptation  of 
modern  codes.  The  precise  codification  of  laws 
might  be  expected  to  repress  the  growth  of 


248         COMMON-SENSE    IN   LAW 

equity  :  but  as  a  matter  of  fact,  the  promulga- 
tion of  Codes  seems  to  have  given  a  new 
impetus  to  the  development  of  a  critical 
and  reforming  spirit  among  Continental 
jurists. 

We  tread  here  on  ground  which  does  not 
belong  properly  to  the  law  of  nature  in  the 
original  meaning  of  the  term.  But  the  less 
ostentatious  teaching  as  to  "  right-law  "  and 
"  equitable  "  law  goes  much  further  than  the 
discretion  of  judges  recognized  at  present  by 
English  Courts  would  warrant.  Appeals  to 
reason  and  to  the  essence  or  nature  of  legal 
relations  aim  at  systematic  reforms  of  the 
law  which  may  help  to  avoid  social  revolution. 


'Hu '  j\4<A.M< 


BIBLIOGRAPHICAL  NOTE 

There  is  a  vast  literature  on  the  subject  of  Jurisprudence  in 
English  as  well  as  in  foreign  languages.  For  beginners  and 
those  interested  in  the  general  problems  of  law  and  not  in  it« 
technical  doctrines,  the  most  suitable  books  are  : 

Sir  William  Markby,  Elements  of  Law  (6th  edition,  Oxford, 
1905).  The  theory  of  Austin,  which  has  played  a  very  gi-eat 
part  in  the  development  of  English  Jurisprudence,  is  summarily 
stated  by  Professor  Jethro  Brown's  Atistinian  Theory  of  Law 
(John  Murray,  1906).  Professor  J.  C.  Gray's  Nature  and  Sources 
of  Law  (Columbia  University  Press,  1909)  approaches  the  subject 
from  a  different  point  of  view,  and  lays  special  stress  on  the 
teachings  of  the  Common  Law.  The  theories  of  Continental 
jurists  are  well  characterized  in  Korkunov's  Theory  of  Lew 
trans.  Hastings  ;  Boston  Book  Co.,  1909). 


249 


INDEX  OF   CASES 


Abrath  v.  N.E.  Railway  Co.,  (1886)  11  Ap  p.  Cas.  247 
A.-G.  V.  Terry,  (1874)  30  L.T.  215    .         '  .         . 

A.-G.   of   Ontario,   etc.  v.  A.-G.    of    Canada,    etc., 

(1912)  A.C.  571 

Asher  v.  Whitlock,  (1865)  L.R.  1  Q.B.  1  . 

Beard,  In  re,  Beard  v.  Hall,  (1908)  1  Ch.  383    . 
Bedford  v.  McKowl,  (1800)  3  Esp.  119      . 
Bemina,  The  (Mills  v.  Arm,  (1887)  12  P.D.  58 

Bright  V.  Hutton,  (1852)  3  strong).  341      . 

TT  T  C 
Chappie  V.  Cooper,  (1844)  13  m!  and  W.  252    . 
Citizen's  Life  Assurance  Co.  i;.  Brown,  (1904)  A.C.  423 
Colls  V.  Home  and  Colonial  Stores,  (1904)  A.C.  179 . 
Conway  v.  Wade,  (1909)  A.C.  506     . 
Cornford  v.  Carlton  Bank,  (1900)  1  Q.B.  22      . 
Cummings  v.  State  of  Missouri,  (1866)  4  Wall.  277  . 

Dallimore    v.    Williams,    29   T.L.R.    67;    and   The 

Times,  June  18th  to  20th  (1913) 
Dalton  V.  Angus,  (1881)  6  App.  Cas.  740 
Daniel  Ball,  The,  10  Wall.  557 
Dann  v.  Curzon,  27  T.L.R.  163 
Dixon  V.  Gayfere,  (1853)  17  Beavan  421 

Forsyth  v.  Manchester  Corporation,  29  T.L.R.  15 

Garland,  Ex  p.,  (1886)  4  Wall.  333  . 
Garth  v.  Cotton,  (1763)  3  Atk.  757  . 
Goodwin  v.  Robarts,  (1875)  L.R.  10  Ex.  337     . 


Hallett's  Estate,  Re,  (1880)  13  Ch.D. 
Harrison  v.  Powell,  10  T.L.R.  271    . 
2.50 


696 


PAOE 

77 
174 

139 
218 

113 

96 

176 

177 

105 
78 

182 
98 
80 

204 


97 
154 
145 
114 
218 

191 

204 
218 
151 

219 
160 


INDEX   OF   CASES 


251 


Iowa,  State  of,  v.  Bell,  (1870)  29  Stiles  316 

Jolly  V.  Kine,  (1907)  A.C.  1        .        .        . 

Kannepalli  v.  Pucha,  22  T.L.R.  670 

IVIarbury  v.  Madison,  (1803)  1  Cranch  49  . 
Mertens  v.  Hill,  (1901)  1  Ch.  842       . 
Mitchinaon  v.  Day,  (1913)  1  K.B.  603 
Moore  v.  Manchester  Liners,  (1910)  A.C.  498 
Musammat  Lali  v.  Murli  Dhar,  22  T.L.R.  460 

Nisbet  V.  Rayne  et  al.,  (1910)  2  K.B.  689 

Omychund  v.  Barker,  (1744)  1  Atk.  21      . 
Osbom  V.  Amalgamated  Society  of  Railway   Ser- 
vants, (1910)  A.C.  87     ' .   ;     , / ..  J    -  -.  '  .}.-J-  ,  ,-439 

Pells  V.  Brown,  (1620)  Cro.  Jac.  590 
Pollard  V.  Turner,  29  T.L.R.  34 
Prested  Miners',  etc.,  Co.  v.  Gardner,  (1910)  2  K.B 
776  (1911):  1  K.B.  425      . 


91 

.     181 

.     162 

.  120 

.  158 

.  184 

.  183 

.  161 

122,  184 

241 


R 


772 


V.  Burton,  (1863)  3  F.  and  F. 

V.  Cory,  (1864)  10  Cox  23     .         .         . 

V.  Crippen,  (1910)  5  Cr.  App.  R.  255  . 

V.  M'Naughten,  (1843)  10  CI.  and  F.  200 

V.  Russell,  (1827)  6  B.  and  C.  566 

V.  Shickle,  (1868)  L.R.  1  C.C.R.  159    . 
Redgrave  v.  Hurd,  (1881)  20  Ch.D.  1 
Rickards  v.  Lothian,  (1913)  A.C.  263 
Rylands  v.  Fletcher,  (1868)  L.R.  3  H.L.  330 

Scott  V.  Brown,  (1892)  2  Q.B.  724  . 
Somersett's  Case,  (1771)  20  S.T.  31  . 

Taff  Vale   Railway  Co.   v.  Amalgamated  Railway 

Servants,  (1901)  A.C.  426.  .  .  .  81,206 
Terry,  A.-G.  t\,  (1874)  30  L.T.  215  .  .  .  .  174 
Thomas  v.  Thomas,  (1842)  2  Q.B.  851  .  .  ^  /HO 
Thorogood  v.  Bryan,  (1849)  8  C.B.  115  (J^C/lf^-tui^TS 
Thoroughgood's  Case,  (1612)  9  Co.  Rep.  136   .         .     107 


189 
125 

196 

131 

185 

93 

132 

173rt>«t^M«^ 
186 
111 
187 
187 

197 
240 


252  INDEX   OF   CASES 


PAGE 


Unwin  v.  Hanson,  (1891)  2  Q.B.  115        .        .        .128 
Upfill  V.  Wright,  (1911)  1  K.B.  506  .        .        .        .115 

Vacher  v.  London  Society  of  Compositors,  (1912)  3 

K.B.  547;  (1913)  A.C.  107         .        .        .        .126 

Wigglesworth  v.  Dallison,  (1778)  1  Sm.  L.C.  (11  Edn.) 

545 156 

Willmott  V.  Loudon  Road  Car  Co.,  (1910)  2  Ch.  525  80 

Wirty  V.  Pemberton,  (1709)  2  Eq.  Cas.  Abr.  279       .  160 


GENERAL   INDEX 


Absolcte  Liability,  Doctrine 

of 

Accursius         .... 

Acts  :  — 
Ainerican  : 
Judiciary,  17S9 


121 


Legal  Tender,  1870  .     144,  177 
English  : 
Bread,  1836,  6  &  7  Wm. 

IV.  c.  37 .         .         .         .     125 
British   North    America, 

1867,     30    &    31    Vict. 

c.  3  ....     140 

Campbell'8,    Lord,     1846, 

9  &  10  Vict.  c.  93  .        .     175 
Copyhold,   1894,  57  &  58 

Vict.  c.  46      .        .        .     154 
Frauds,    Statute    of,     29 

Car.  II.  c.  3    .       53,  138,  196 
Gaming,  1845,  8  &  9  Vict. 

c.  109      .        .        .        .     119 
Highways,    1835,    5   &    6 

Wm.  IV.  c.  50         .        .     128 
Judicature,  1873,  36  &  37 

Vict.  c.  66       .        .     208,  219 
Locomotives,  1898,  61  &62 

Vict.  c.  29       .         .        .     227 
Married     Women's    Pro- 
perty, 1882-^3,  45  &  46 

Vict.    c.  75;    50    &    57 

Vict.  c.  63       .        .        .     232 
Motor-Cars,  1903,  3  Edw. 

VII.  c.  36        .        ,        .     227 
Quia  Emptoro,  Statute  of, 

12'.>0,  18  Edw.    I     .     158,  159 
Sale  of  Goods,  1893,  57  & 

57  Vict.  c.  71  .        .        .     151 
Superstitious     Practices, 

1547,  1  Edw.  VI.  c.  14   .     113 
Trade   Disputes,    1906,   6 

Edw.  VII.  c.  47  81,82,97,120 
Trade  Unions,  1876,  39  & 

40  Vict.  c.  22  .         .         .     180 
Westminster,  Statute  of, 

II,    1275,    13    Edw.    1. 

.St.  1        .        .        .     155,216 


PAGE 

Acts  {rontinuid) ; — 
English  : 
Workmen's  Compensation, 
1906, 6  Edw.  VI  I.  c.  58, 123, 183 
Act-in-law,  Nature  of     .        .     101 
may  be  effected  uncon- 
sciously .        .        .        104  ff. 

,  an  expression    of    free 

wiU         .        .        .        106  ff. 

,  conformity  to  legal  rules    112 

,  to  moraUty     .        .        113  ff. 

,  unilateral  and  bilateraL 

See  s.v. 
Action  on  the  case  .        .        .     216 
Administrative  Acts       .        .     102 
Aebutius,  and  Caecina,  Case 

of 210 

Agination.     Set  Roman  Law. 
Antoninus  Pius       .        .     224,  237 
Aristotle  .        .  14,  23,  209,  235,  244 
Atkinson,  Lord        .        .     ISO,  181 
Augustine,  St.  ...    237 

Aurelius,  Marcus  .  .  .  237 
Austin,  ITieory  of    .        .        .31 

,  objections  to  35  ff.,  164,  207 

Austria,  Annexation  of  Bosnia 

by 40 

,  Code  of    .  .        -    238 

Authoritv,  Rights  of  ,  .64 
Azzo.      " 202 

Bayley,  J 173 

Bentham.  .  .  92,205,244 
Bilateral  Acts  .  .  .  .103 
Bills  of  Exchange    ...      27 

Blackburn,  J 188 

Blackatone  ....  1 
Blaine,  Secretary  of  State  .  136 
Bonorum  posses.iio     .  .     214 

Bosnia      .  .        '         .40 

Bracton  .  .  .  '  116,  171 
Bramwell,  Lord  .  '  .  "7 
Bucknill,  J.     .        .        .        .115 

Caecina,  and  Aebutius,  Case 

of 210 

263 


25 1 


GENERAL   INDEX 


PAOR 

Calvin 3', 

Campbell,  Lord  .  .  .  177 
Canada,  Constitution  of  .  13!) 
Canon  Law  34,  35,  lO-l,  21C>,  242 
Chancery.        .        .         210  ff.,  229 

Channell,  B 18H 

Ohai  ities  .        .        .        .  82  ff. 

Chose  inaction  ...  80 
Church,  Sanction  in        .         35,  55 

Cicero 210 

Clayton-Bulwer  Treaty  .        .     130 
Cockburn,  C.  J.       .        .     154,  218 
Cognation.     See  Roman  Law. 
Common  Law,  as  case-law     .     160 

,  relation  to  custom  .        .     170 

,  development  of      .         .171 

,  retroactive      .        .        203  S. 

,  uncertain 

,  conflict    with    Equity. 

Equity. 
Companies,  Chartered     . 
Conseil  d'l^tat  .... 
Consideration,  Doctrine  of 
Constantinople,  Oeolaratioii  of 
Constitutions,  Written   . 
Contingent  interests,  created 

by  will    .... 
Contract  in  Roman  law.     See 

Roman  Law. 
Convention,  Standards  of        20  ff. 

Copyhold 154 

Corporations  .  .  .  .  74  ff. 
Corpoieal     and     Incorporeal 

Things.     See  Things. 
Custom,  Social. 

,  nature  of 

■ ,  theories  of 

,  as  a  source  of  law 


2i')5 
Stc 


134 
100 
135 
120 

100 


-,  te.sts  of    . 
-,  manorial . 
-,  growth  of 
-,  relation  to  Common  Law 
See  Common  Law. 


148  ff. 
140  ff. 
31,  117, 
152  fif. 
104  ff. 
.  158 
103  ff. 


Damages,  Sanction  of    .        .20 

Darling,  J 80 

Dartmoor,  Customs  of  .  .  153 
Denmark,  British  attack  on  .      40 

Ejectment,  Action  of  .  .171 
Eldon,  L.C.  .  .  .  00,  208 
Emplciyers'  liability  .  93  ff. 
Epkikcia  .....  200 
Equity,  as  judge-made  law  .  118 
• ,  influence  on  procedure      215 


Kquitv,  conflict  with  common 

law. 

.     218 

,  invention  in    . 

.     219 

,  individualizatiim  by 

.     222 

siipplcmentary  to  law 

.     220 

corrective  of  law 

.     227 

E.sher,  Lord,  M.U.  . 

.     129 

Kvidence,  Rules  of . 

.      90 

,  expert     . 

130  ff. 

Execution,  Sanction  of  . 

.      28 

Fact-iu-law,  Nature  of    . 

.      87 

as  evidence 

88 

,  presumptions  of     . 

.  02  ff. 

in  law  of  evidence  . 

.      90 

of     questions     decided 
without    reference    to 
legal  rules      ...      96 
Far  well,  L.J..  .       123,  127,  206 

Fasliion,  Rules  of  .  .  .  19  ff. 
Feudal  law.  Ceremonies  of  .  107 
Fiction.s  in  Roman  Law.    See 

Roman  Law. 
France,  Medieval   .        .        .150 


G.aius        .... 
Gavelkind  succession 
Gennanistic  School 
Germany,  Mediaeval  law. 

,  Emperor. 

,  Constitution  . 

,  Civil  Code     117,  ISO, 

,  Mediseval  customs . 

Ocicere       .... 
Gray,  J.  C,  quoted. 
Guardians 


118, 


107, 


237 
170 
107 
36 
38 
38 
221 
150 
108 
ISO 


Ilaldane,  L.C. 
Halsbury,  Lord 
Hardwicke,  L  C 
Ilaigrave  . 

Ilay-Pauncefote  Treaty 
Heriot 

Herzegovina    . 
Hobbes     . 


127 
180 


104,  208,  218,  241 
.  240 
134  ff. 
.  100 
.  40 
30 


Uolt,  L.C 194 

Iceland,  Ancient  law  of  .  .  100 
Mentiflcation,  Doctrine  of  .  175 
Ihering  ...  .43,  72 
Inheritance,  Law  of  .  170,214 
Insanity,  in  law  .  .  130  ff. 
Intention,  in  law  .  .  .  56 
Interdict,  iinde  vi  armata  .  210 
Internation.allaw,  Sanction  of  39 
,  Law  of  Nature  in   .  239 


GENERAL   INDEX 


255 


PAGE 

Interpretation,  literal     . 

.     122 

,  technical. 

.     128 

,  historical 

.     l:;4 

,  widening 

.     IbT 

Intoxication,  in  law 

90,  01 

James  of  Hereford,  Lord     ISO, 

Jessel,  Sir  G.,  M.R.      Ill,  174, 

Jurisconsults.  See  responsa 
prudentiv.m. 

Jurisprudence,  basis  in  re- 
flection . 

,  a  social  science 

,  a  moral  science 

Jus  (uljuvandi  . 

corrigendi. 

gentium    . 

naturale    . 

supplendi . 

Justinian .        .  16' 


213. 


201, 


16 
222 
222 
23<) 
239 
222 
237 


Kant  .         -.  19,  48,  23S,  244,  247 

Kennedy,  L.J.  .        .     124,  127 

Kent.     See  Gavelkind. 
Kenyon,  Lord,  C.J.         .        .     193 
Korkunov         ....       43 

Lagmen 165 

Law,  a  rule  of  conduct        19,  53  fi. 
,  connection  with  moral- 
ity .        ...  24  ff. 

distinguished  from  right      24 

,  sanction .        .        .  28  ff. 

,  incomplete  sanction      .      41 

,  conclusion   as   to  sane- 


tion 

42  ff. 

,  recognition  of 

39 

,  imperfect 

41 

,  aim  of     . 

42  ff. 

- — -  defined     . 

59 

,  sources  of,  nature  . 

116 

,  a  declaration  of 

right 

206 

Law  Merchant 

151 

Leading  ca-ses,  Authority  of 

189 

Legal  Memory.    Hce  Memory 

Legislation,  a  formulation  o: 

rule 

119 

,   interpretation 

of.'    6>< 

Interi^retation. 

Legitimac}-,  Presumj 

tion  of  . 

94 

Lindley,  Lord  . 

198 

Locke 

240 

Loegsoegumadhr 

166 

Lombroso 

244 

Lopes,  L.J. 

176 

Lorebum,  I>.C. 

181 

PAGE 

Lowell,  U  S.A.  Ambassador  .  136 
Lunatics .  .  .  .  55,  72 
Luther 35 

Macnaghten,  Lord .        .     180,184 

Maine 33 

Mansfield,  Lord  110,  151,  152,  241 
Married  Women,  in  English 

law  .  .  .  .229 
— — ,  in  Roman  law  .  .  228 
Marshall,  C.J.  .        .        .121 

Maule,  J.  ....     176 


JIaxims,  Legal 
Memory,  Legal 
Jlerchant,  Law.     See  Law. 
Mersey,  Lord  .... 

Minors 

Jlisrepresentation  . 

Moody,  J.         .... 

Morality,    Relation   to   Law. 

See  Law. 
in  acts-ill-law.    S^'eActs- 

in-law. 
Motor-Cars,  Law  as  to    . 
Moulton,  Lord 


197 

154 

184 
45 
110 
145 


227 

187 


Napoleon,  Code  .  .  117,  134 
Nations,    Law    of.     See    Jus 

gent  in  m. 
Nature,  Law  of        .        .      llS,  23 

,  Greek  view  of         .        ,     235 

,  Roman  view  of      .        .     236 

,  early  Christian  view  of  .     237 

,  philosophic  view  of       .     238 

,  effect  on  positive  law    .     238 

not  a  technical  source  of 

law         ....    242 

,  foundations  of        .        242  ff. 

at  the  present  day  .        210  ff. 

Nottingham,  Custom  of .  .  117 
Nottingham,  L.C.  .  .  .  208 
Nullity,  Sanction  of        .        .29 

Oath,  in  Engli.sli  law  .  .  241 
Obligations,    Rights    arising 

from  ....  64 
Order,  a  social  necessity  .  15 
Overruling       .        .        .        173  fif. 

Panama  Canal.  .  .  134  ff. 
Papinian  .  .  .  200,  237 
Parliamint,  English  .  .  30 
Patagonians  ....  11 
Paul,  the  jurist  .  .  236,  237 
Personality,  rights  of  .  .62 
plurality  of 


256 


GENERAL  INDEX 


I 


rornonality.    A  nd  see  Corpora- 
tions. 
Phillpotts,  Eden     .        .        .     l.^'S 
Plato         ...        23,  235,  244 
Power,  Social  .        .        .    47  flf.,  59 
Praetor  pereynnus  .        .        .     213 
Precedents.     See  Common  Law. 
Presumptions .        .        .         92,  94 
Primogeniture         .        .        .     170 
Properly,  Rights  of       03,  67  ff.,  85 
Prussian  Code  .        .        .     122 

Public  Policy  .  .  .  .113 
Punishment,  Sanction  of       .      29 

and  Law  of  Nature         .    243 

Pythagoreans ....     236 

Raleigh,  William  .  .  .171 
Katio  decidendi  .  .  179,  199 
Reason  and  will      .        .  17  fif . 

Rent 27 

Restraint  on  anticipation       .     231 

Rights,  Nature  of  ...  61 
,  defined     ....      62 

,  classification  of      .        .03  ff . 

,"  rights  of  man "    .        .     240 

.  And  see  Authority,  Obli- 
gations, Wrongs. 

Robertson,  Lord 

Roman     law,    influence     on 
English  law  . 

,  influence  on  Germany  . 

Tesponsa      prudentiuvi 

in    .        .        .        .    200,  222 

in  the  Middle  Ages 

,  equity  in  _ 

,  agnation  in 

,  cognation  in  . 

,  fictions  in 

,  intention  in    . 

,  contract  in 

,  wardships  in  . 

,  testament  in  . 

Romer,  L.J.     . 

St.  Leonards,  Lord 
Sanction.    See  Law. 
Savigny    . 
Saxon  Law 
Scandinavian  Custom 

Schijfen 

Science,  Natural  as  opposed 

to  Moral 
Seduction         .        .        _        _ 
Sei>arato  estate.  See  Married 

Women. 

Bliaw,  Lord      .        .        .        .180 
Slavery,  Greek  view  of  .        .    234 


181 


197 
203 


202 
210  ff. 
.  214 
.  215 
.  215 
.  223 
.  223 
228,  237 
223  ff. 
.     181 

.     177 

.  149 
.  166 
165 
165 


PAGE 

Slavery  and  Jus  grnliuiii  ,    239 

,  English  view  of      .  .     241 

Society,  Nature  of  *        .  .49 

,  tribal       .        .        .  .      33 

Socrates   ....  23,  235 

Southampton,  Custom  of  .     117 
Sovereignty.    See  Law. 

Si)endthrifts    ...  45,  72 

Stammler         .        .        •  .247 

State,  Rights  of       .        .  64,  69 
Statutes.     See  Acts. 

Stoicism 237 

Subsumption  .        .        .  183  ff. 

Suez  Canal       .        .        .  .135 

Superstitious  Practices  .  .     113 

Sweden,  Ancient  laws  of  .     166 

Swiss  Civil  Code      .        .  .     232 

Talmud 83 

Tangano 1''' 

Tenterden,  Lord,  C.J.  .  .  174 
Testaments,  in  Roman  Law. 

See  Roman  Law. 
Text-writers,  Authority  of     .    196 
Things,  Corporeal  and  Incor- 
poreal    .        .        .        .84 
Tliurlow,  Lord         .        .        .231 
Trade  Union    .        .         41,  81,  206 
Tribal  society.    See  Society. 
Trusts 229 

Ulpian  ....  24,236 
Unilateral  acts  .  .  .  103 
United  States,  Sovereignty  in       34 

,  Constitution  of     120, 143,  203 

and  Panama  Canal .        134  ff . 

Urtheile    .        .        .         .        •     1<J5 

200 

224 

11 

216 

161 
196 


Valentinian  III 

Valerius  Nepos,  Case  of 

Veddas 

Villeins,  Status  of   . 

Wajib-ul-arz     . 

Walton,  J. 

Wardship.    See  Roman 

Wightman,  J. 

Wigmore,  J.  H.,  quoted 

Will,  in  moral  science 

Will,  power  to  make 

Williams,  Vaughan,  L.J. 

Witan 

Writ  procedure 

Wrongs,  Rights  arising  from 


132 
194 

17  ff. 

48 

,    193 

.    166 

215 

64 


Xenophon 
Year  Books  . 


.     235 
116,  171, 193 


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82.  PREHISTORIC  BRITAIN 

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2.  SHAKESPEARE 

By  John  Masefield.  "  The  book  is  a  joy.  We  have  had  half-a-dozen  more 
learned  books  on  Shakespeare  in  the  last  few  years,  but  not  one  so  wise." — 
Manchester  Guardian. 

27.  ENGLISH  LITERATURE:  MODERN 

By  G.  H.  Mair,  M.A.     "Altogether a  fiesh  and  individual  \iO(^."— Observer. 

35.  LANDMARKS  IN  FRENCH  LITERA  TURE 

By  G.  L.  Strachey.  "  It  is  difficult  to  imagine  how  a  better  account  of 
French  Literature  could  be  given  in  250  small  pages." — The  Times. 

39.  ARCHITECTURE 

By  Prof.  W.  R.  Lethaby.  (Over  forty  Illustrations.)  "  Popular  guide-books 
to  architecture  are,  as  a  rule,  not  worth  much.  This  volume  is  a  welcome  excep- 
tion."— Building  News.     "  Delightfully  bright  reading." — Christian  World. 

43-  ENGLISH  LITERATURE:  MEDIEVAL 

By  Prof.  W.  P.  Ker,  M.A.  "  Prof.  Ker,  one  of  the  soundest  scholars  in  English 
we  have,  is  the  very  man  to  put  an  outline  of  English  Mediaeval  Literature 
before  the  uninstructed  public.  His  knowledge  and  taste  are  unimpeachable, 
and  his  style  is  effective,  simple,  yet  never  dry." — The  Athcnceum. 

45-  THE  ENGLISH  LANGUAGE 

By  L.  Pearsall  Smith,  M.A.  "A  wholly  fascinating  study  of  the  different 
streams  that  went  to  the  making  of  the  great  river  of  the  English  speech." — 
Daily  News. 

52.  GREAT  WRITERS  OF  AMERICA 

By  Prof.  J.  Erskine  and  Prof.  W.  P.  Trent.  "An  admirable  summary,  from 
Franklin  to  Mark  Twain,  enlivened  by  a  dry  humour." — Athentpuni. 

63.  PAINTERS  AND  PAINTING 

By  Sir  Frederick  Wedmore.  (With  16  half-tone  illustrations.)  From  the 
Primitives  to  the  Impressionists. 

64.  DR  JOHNSON  AND  HIS  CIRCLE 

By  John  Bailey,  M.A.     "A  must  delightful  essay."— Christian  World. 

65.  THE  LITERATURE  OF  GERMANY 

By  Professor  J.  G.  Robertson,  M.A.,  Ph.D.  "Under  the  author's  skilful 
treatment  the  subject  shows  life  and  continuity.  ' — Athenaum. 

70.   THE  VICTORIAN  AGE  IN  LITERATURE 

By  G.  K.  Chesterton.  "  The  book  is  everywhere  immensely  alive,  and  no 
one  will  put  it  down  without  a  sense  of  having  taken  a  tonic  or  received  a  series 
of  electric  shocks." — The  Titr.es. 

73.  THE   WRITING  OF  ENGLISH. 

By  W.  T.  Brewster,  A.M.,  Professor  of  English 
"  Sensible  in  its  teaching,  and  not  over-rigidly  conv( 
Manchester  Guardian. 

75.  ANCIENT  ART  AND  RITUAL. 

By  Jane  E.  Harrison,  LL.D.,  D.Litt.  "  Charming  in  style  and  learned  in 
manner." — Daily  News. 


By  W.  T.  Brewster,  A.M.,  Professor  of  English  in  Columbia  University. 
"  Sensible  in  its  teaching,  and  not  over-rigidly  conventional  in  its  manner." — 
Manchester  Guardian. 


76.  EURIPIDES  AND  HIS  AGE 

By  Gii.isEKr  Murray,  D.  Litt.,  LL.D.,  F.B.A.,  Regius  Professor  of  Greek  at 
Oxford.  "  A  bcautilul  piece  of  work.  .  .  .  Just  in  the  fulness  of  time,  and 
exactly  in  the  right  place.  .  .  .  Euripides  has  come  into  his  own."— 7'/rif  7Wi/;(?«. 


7-  MODERN  GEOGRAPHY 

By  Dr  Marion  Newbigin.  (Illustrated.)  "Geography,  again  :  what  a  dull, 
tedious  study  that  was  wont  to  be  !  .  .  .  But  Miss  I\Iarion  Newbigin  invests  its 
dry  bones  with  the  flesh  and  blood  of  romantic  interest." — Daily  Telegraph, 

9.   THE  EVOLUTION  OF  PLANTS 

By  Dr  D.  H.  Scott,  M.  A.,  F.  R.S.,  late  Hon.  Keeper  of  the  Jodrell  Laboratory, 
Kew.  (Fully  illustrated.)  "The  information  is  as  trustworthy  as  first-hand 
knowledge  can  make  it.  .  .  .  Dr  Scott's  candid  and  familiar  style  makes  the 
difficult  subject  both  fascinating  and  easy." — Gardeners'  Chronicle. 

17.  HEALTH  AND  DISEASE 

By  W.  Leslie  Mackenzie,  M.D.,  Local  Government  Board,  Edinburgh. 
"  Dr  Mackenzie  adds  to  a  thorough  grasp  of  the  problems  an  illuminating  style, 
and  an  arresting  manner  of  treating  a  subject  often  dull  and  sometimes 
unsavoury." — Economist. 

1 8.  INTRODUCTION  TO  MATHEMATICS 

Bj-A.  N.  Whitehead,  Sc.D.,  F.R.S.  (With  Diagrams.)  "Mr  Whitehead 
has  discharged  with  conspicuous  success  the  task  he  is  so  exceptionally  qualified 
to  undertake.  For  he  is  one  of  our  great  authorities  upon  the  foundations  of 
the  science." — IVestminsier  Gazette. 

19.  THE  ANIMAL  WORLD 

By  Professor  F.  W.  Gamble,  D.Sc,  F.R.S.  With  Introduction  by  Sir  Oliver 
Lodge.  (Many  Illustrations.)  ' '  A  delightful  and  instructive  epitome  of  animal 
(and  vegetable)  life.  ...  A  fascinating  and  suggestive  survey." — Morning  Post. 

20.  EVOLUTION 

By  Professor  J.  Arthur  Thomson  and  Professor  Patrick  Geddes.  "A 
many-coloured  and  romantic  panorama,  opening  up,  like  no  other  book  we 
know,  a  rational  vision  of  world-development." — Belfast  News-Letter. 

22.  CRIME  AND  INSANITY 

By  Dr  C.  A.  Mercier.  "  Furnishes  much  valuable  information  from  one 
occupying  the  highest  position  among  medico-legal  psychologists." — Asylum 
News. 

28.  PSYCHICAL  RESEARCH 

By  Sir  W.  F.  Barrett,  F.R.S.,  Professor  of  Physics,  Royal  College  of 
Science,  Dublin,  1873-1910.  "What  he  has  to  say  on  thought-reading, 
hypnotism,  telepathy,  crystal-vision,  spiritualism,  divinings,  and  so  on,  will  be 
read  with  avidity." — Dundee  Courier. 

31.  ASTRONOMY 

By  A.  R.  HiNKS,  M.A.,  Chiel  Assistant,  Cambridge  Observatory.  "Original 
in  thought,  eclectic  in  substance,  and  critical  in  treatment.  .  .  .  No  better 
little  book  is  available." — School  World. 


32.  INTRODUCTION  TO  SCIENCE 

By  J.  Arthur  Thomson,  ]M.  A.,  Regius  Professor  of  Natural  History,  Aberdeen 
University.  "Professor  Thomson's  delightful  literary  style  is  well  known  ;  and 
here  he  discourses  freshly  and  easily  on  the  methods  of  science  and  its  relations 
with  philosophy,  art,  religion,  and  practical  life." — Aberdeen  Journal. 

36.  CLIMATE  AND  WEATHER 

By  Prof.  H.  N.  Dickson,  D.Sc.Oxon.,  M.A.,  F.R.S.E.,  President  of  the 
Royal  Meteorological  Society.  (With  Diagrams.)  "The  author  has  succeeded 
in  presenting  in  a  very  lucid  and  agreeable  manner  the  causes  of  the  movements 
of  the  atmosphere  and  of  the  more  stable  winds." — Manchester  Guardian. 

41.  ANTHROPOLOGY 

By  R.  R.  Marett,  M.A.,  Reader  in  Social  Anthropology  in  Oxford  University. 
"An  absolutely  perfect  handbook,  so  clear  that  a  child  could  understand  it,  so 
fascinating  and  human  that  it  beats  fiction  '  to  a  frazzle.'" — Morning  Leader. 

44.  THE  PRINCIPLES  OF  PHYSIOLOGY 

By  Prof.  J.  G.  McKendrick,  M.D.  "  It  is  a  delightful  and  wonderfully 
comprehensive  handling  of  a  subject  which,  while  of  importance  to  all,  does 
not  readily  lend  itself  to  untechnical  explanation.  .  .  .  Upon  every  page  of  it 
is  stamped  the  impress  of  a  creative  imagination." — Glasgow  Herald. 

46.  MATTER  AND  ENERGY 

By  F.  SoDDY,  M.A.,  F.R.S.  "Prof.  Soddy  has  siiccessfully  accomplished 
the  very  difficult  task  of  making  physics  of  absorbing  interest  on  popular 
lines." — .Nature. 

49.  PSYCHOLOGY,  THE  STUDY  OF  BEHAVIOUR 

By  Prof.  W.  McDougai.l,  F.R.S. ,  M.B.  "A  happy  example  of  the  non- 
technical handling  of  an  unwieldy  science,  suggesting  rather  than  dogmatising. 
It  should  whet  appetites  for  deeper  study." — Christian  TVorld. 

53.  THE  MAKING  OF  THE  EARTH 

By  Prof.  J.  W.  Gregory,  F.R.S.  (With  38  Maps  and  Figures.)  "A 
fascinating  little  volume.  .  .  .  Among  the  many  good  things  contained  in  the 
series  this  takes  a  high  place." — The  AtliencEum. 

57.  THE  HUMAN  BODY 

By  A.  Keith,  M.D.,  LL.D.,  Conservator  of  Museum  and  Huuterian  Professor, 
Royal  College  of  Surgeons.  (Illustrated.)  "  It  literally  makes  the  'dry  bones" 
to  live.  It  will  certainly  take  a  high  place  among  the  classics  of  popular 
science." — Manchester  Guardian. 

58.  ELECTRICITY 

By  Gisbert  Kapp,  D.Eng.,  Professor  of  Electrical  Engineering  in  the  Univer- 
sity of  Birmingham.  (Illustrated.)  "  It  will  be  appreciated  greatly  by  learners 
and  by  the  great  number  of  amateurs  who  are  interested  in  what  is  one  of  the 
most  fascinating  of  scientific  studies." — Glasgow  Herald. 

62.  THE  ORIGIN  AND  NA  TURE  OF  LIFE 

By  Dr  Benjamin  Mooke,  Professor  of  Bio-Chemistry,  University  College, 
Liverpool.     "  Stimulating,  learned,  lucid." — Liverpool  Courier. 

67.  CHEMISTRY 

By  Raphael  Meldola,  F.R.  S.  ,  Professor  of  Chemistry  in  Finsbury  Technical 
College,  London.  Presents  clearly,  without  the  detail  demanded  by  the 
expert,  the  way  in  which  chemical  science  has  developed,  and  the  stage  it  has 
reached. 

72.  PLANT  LIFE 

By  Prof.  J.  B.  Farmer,  D.Sc,  F.R.S.  (Illustrated.)  "  Professor  Farmer  has 
contrived  to  convey  all  the  most  vital  facts  of  plant  physiology,  and  also  to 
present  a  good  many  of  the  chief  problems  which  confront  investigators  to-day 
in  the  realms  of  morphology  and  of  heredity."— .^/orw/w^  Post. 

5 


78.  THE  OCEAN 

A  General  Account  of  the  Science  of  the  Sea.  By  Sir  John  Murray,  K.C.  B.  , 
F.R.S.  (Illus.)  "A  life's  experience  is  crowded  into  this  volume.  A  very  use- 
ful feature  is  the  ten  pages  of  illustrations  and  coloured  maps  at  the  end." — 
Gloucester  fournal, 

79.  NERVES 

By  Prof.  D.  Fkaser  Harris,  M.D.,  D.Sc.  (Illustrated.)  A  description,  in 
non-technical  language,  of  the  nervous  system,  its  intricate  mechanism  and  the 
strange  phenomena  of  energy  and  fatigue,  with  some  practical  reflections. 


Philosophy  and  T^ligion 


15.  MOHAMMEDANISM 

By  Prof.  JJ.  S.  IVIargoliouth,  M.A.,  D.Litt.  "This  generous  shilling's 
worth  of  wisdom.  ...  A  delicate,  humorous,  and  most  responsible  tractate 
by  an  illuminative  professor." — Daily  Mail. 

40.   THE  PROBLEMS  OF  PHILOSOPHY 

By  the  Hon.  Bertrand  Russell,  F.R.S.  "A  book  that  the  'man  in  the 
street '  will  recognise  at  once  to  be  a  boon.  .  .  .  Consistently  lucid  and  non- 
technical throughout." — Christian  World. 

47.  BUDDHISM 

By  Mrs  Rhys  Davids,  M.A.  "  The  author  presents  very  attractively  as  well 
as  very  learnedly  the  philosophy  of  Buddhism  as  the  greatest  scholars  of  the 
day  interpret  it." — Daily  News. 

50.  NONCONFORMITY:  Its  ORIGIN  and  PROGRESS 

By  Principal  W.  B.  Selbie,  M.A.  ''The  historical  part  is  brilliant  in  its 
insight,  clarity,  and  proportion;  and  in  the  later  chapters  Dr  Selbie  proves  him- 
self to  be  an  ideal  exponent  of  sound  and  moderate  views." — Christian  World. 

54.  ETHICS 

By  G.  E.  Moore,  M.A.,  Lecturer  in  Moral  Science  in  Cambridge  University. 
"A  very  lucid  though  closely  reasoned  outline  of  the  logic  of  good  conduct." 
—Christian  World. 

56.  THE  MAKING  OF  THE  NEW  TESTAMENT 

By  Prof.  B.  W.  Bacon,  LL.D.,  D.D.  "Professor  Bacon  has  boldly,  and 
wisely,  taken  his  own  line,  and  has  produced,  as  a  result,  an  extraordinarily 
vivid,  stimulating,  and  lucid  book." — Manchester  Guardian. 

60.  MISSIONS:  THEIR  RISE  and  DEVELOPMENT 

By  Mrs  Creighton.  "  Very  interestingly  done.  ...  Its  style  is  simple, 
direct,  unhackneyed,  and  should  find  appreciation  where  a  more  fervently 
pious  style  of  writing  repels." — Methodist  Recorder. 

68.  COMPARATIVE  RELIGION 

ByProf.J.EsTLiNCARPENTER,D.Litt.,PrincipalofManchesterCollege,Oxford. 
"  Puts  into  the  reader's  hand  a  wealth  of  learning  and  independent  thought." 
— Christian  World.  ,„ 

74.  A  HISTORY  OF  FREEDOM  OF  THOUGHT 

By  J.  B.  Bury,  Litt.D.,  LL.D.,  Regius  Professor  of  Modern  History  at 
Cambridge.  "A  little  masterpiece,  which  every  thinking  man  will  enjoy." 
—  The  Observer. 

84.  LITERATURE  OF  THE  OLD  TESTAMENT 

'  By  Prof.  George  Moore,  D.D.,  LL.D.,  of  Harvard.     A  detailed  examinatiou 
of  the  books  of  the  Old  Testament  in  the  light  of  the  most  recent  research. 

6 


Social  Science 


I.  PARLIAMENT 

Its  History,  Constitution,  and  Practice.  By  Sir  Courtenay  P.  Ilbert, 
G.C.B.,  K.C.S.I.,  Clerk  of  the  House  of  Commons.  "The  best  book  on  the 
history  and  practice  of  the  House  of  Commons  since  Bagehot's  'Constitution.'" 
— Yorkshire  Pest. 

5.  THE  STOCK  EXCHANGE 

By  F.  W.  Hirst,  Editor  of  "  The  Economist."  "To an  unfinancial mind  must 
be  a  revelation.  .  .  .  The  book  is  as  clear,  vigorous,  and  sane  as  Bagehot's '  Lom- 
bard Street,'  than  which  there  is  no  higher  compliment." — Morning  Leader. 

6.  IRISH  NATIONALITY 

By  Mrs  J.  R.  Green.  "  As  glowing  as  it  is  learned.  No  book  could  be  more 
timely." — Daily  News. 

10.  THE  SOCIALIST  MOVEMENT 

By  J.  Ramsay  MacDonald,  M.P.     "Admirably  adapted  for  the  purpose  of 

exposition." — The  Times. 

II.  CONSERVATISM 

By  Lord  Hugh  Cecil,  M.A.,  M.P.  "  One  of  those  great  little  books  which 
seldom  appear  more  than  once  in  a  generation." — Morning  Post. 

16.   THE  SCIENCE  OF  WEALTH 

By  J.  A.  HoBSON,  M.A.  "  Mr  J.  A.  Hobson  holds  an  unique  position  among 
living  economists.  .  .  .  Original,  reasonable,  and  illuminating." — The  Nation. 

21.  LIBERALISM 

By  L.  T.  HOBHOUSE,  M.A.,  Professorof  Sociology  in  the  University  of  London. 
"  A  book  of  rare  quality.  .  .  .  We  have  nothing  but  praise  for  the  rapid  and 
masterly  summaries  of  the  arguments  from  first  principles  which  form  a  large 
part  of  this  book." — Westminster  Gazette. 

24.  THE  EVOLUTION  OF  INDUSTRY 

By  D.  H.  Macgregor,  M.A.,  Professor  of  Political  Economy  in  the  University 
of  Leeds.  "  A  volume  so  dispassionate  in  terms  may  be  read  with  profit  by  all 
interested  in  the  present  state  of  unrest." — Aberdeen  Journal. 

26.  AGRICULTURE 

By  Prof.  W.  Somerville,  F.L.S.  "It  makes  the  results  of  laboratory  work 
at  the  University  accessible  to  the  practical  farmer." — Athenceum. 

30.  ELEMENTS  OF  ENGLISH  LA  W 

By  W.  M.  Geldart,  M.A.,  B.C.L.,  Vinerian  Professor  of  English  Law  at 
Oxford.  "  Contains  a  very  clear  account  of  the  elementary  principles  under- 
lying the  rules  of  English  Law." — Scots  Law  Times. 
38.  THE  SCHOOL :  An  Introduction  to  the  Study  of  Edtuation. 
By  J.  J.  FiNDi.AY,  M.A.,  Ph.D.,  Professor  of  Education  in  Manchester 
University.  "  An  amazingly  comprehensive  volume.  ...  It  is  a  remarkable 
performance,  distinguished  in  its  crisp,  striking  phraseology  as  well  as  its 
mclusiveness  of  subject-matter." — Morning  Post. 

59.  ELEMENTS  OF  POLITICAL  ECONOMY 

By  S.  J.  Chapman,  M.A.,  Professor  of  Political  Economy  in  Manchester 
University.  "  Its  importance  is  not  to  be  measured  by  its  price.  Probably 
the  best  recent  critical  exposition  of  the  analytical  method  in  economic 
science." — Glasgow  Herald. 


69-    THE  NEWSPAPER       By  G.  Binnev  Dibblee,  M.A.    (Illus- 

; trateil.)    The  best  account  extant  of  the 

organisation  of  the  newspaper  press,  at  home  and  abroad. 

TJ.  SHELLEY,  GODWIN,  AND  THEIR  CIRCLE 

By  H.  N.  Bkailsforl),  M.A.  "  Mr  lirailsford  sketches  vividly  the  influence  of 
the  French  Revolution  on  Shelley's  and  Godwin's  Eni;Uind;  and  tlie  cliarm  and 
strenRlli  of  his  style  make  his  book  an  authentic  contribution  to  literature." — 
The  Bookman, 

80.  CO-PARTNERSHIP   AND   PROFIT-SHARING 

By  A  NEURIN  Williams,  M.A. — "A  judicious  but  enthusiastic  history,  with  much 
interesting  speculation  on  the  future  of  Co-partnership." — Christian  World. 

8 1.  PROBLEMS  OF  VILLAGE  LIFE 

By  E.  N.  BENNitTT,  M.A.     Di.scusses  the  leading  aspects  of  the  British  land 

problem,  including  housing,  small  holdings,  rural  credit,  and  the  minimum  wage. 

83.    COMMON-SENSE  IN  LAW       By  Prof.  p.  Vinogradoff, 

85.    UNEMPLOYMENT       By  Prof.  A.  C.  PiGOU,  M.A. 

In  Preparation 

ANCIENT  EGYPT.     By  F.  Ll.  Griffith,  M.A. 

THE  ANCIENT  EAST.    By  D.  G.  Hogarth,  M.A.,  F.B.A. 

A  SHORT  HISTORY  OF  EUROPE.     By  Herbert  Fisher,LL.D. 

THE  BYZANTINE  EMPIRE.     By  Norman  H.  Baynes. 

THE  REFORMA  TION.     By  President  Lindsay,  LL.D. 

A  SHOR  T  HISTORY  OF  R USSIA.     By  Prof.  Milyoukov. 

MODERN  TURKEY.     By  D.  G.  Hogarth,  M.A. 

FRANCE  OF  TO-DAY.     By  Albert  Thomas. 

HISTORY  OF  SCOTLAND.    By  Prof.  R.  S.  Rait,  M.A. 

LA  TIN  AMERICA.    By  Prof.  W.  R.  Shepherd. 

HISTORY  AND  LITERATURE  OF  SPAIN.      By  J.    Fitzmaurice- 

Kelly,  F.B.A.,  Litt.D. 
LA  TIN  LITER  A  TURE.    By  Prof.  J.  S.  Phillimore. 
THE  RENAISSANCE.    By  Miss  Edith  Sichel. 
ITALIAN  ART  OF  THE  RENAISSANCE.    By  Roger  E.  Fry. 
LITERARY  TASTE.    By  Thomas  Seccombe. 
CHAUCER  AND  HIS  TIME.     By  Miss  G.  E.  Hadow. 
WILLIAM  MORRIS  AND  HIS  CIRCLE.     By  A.  Glutton  Brock. 
SCANDINA  VIAN  HISTORY  &=  LITER  A  TURE.    By  T.C.  Snow. 
THE  MINERAL  WORLD.     By  Sir  T.  H.  Holland,  K.C.I. E.,  D.Sc. 
SEX.     By  Prof.  J.  A.  Thomson  and  Prof.  Patrick  Geddes. 
THE  GROWTH  OF  EUROPE.    By  Prof.  Grenville  Cole. 
BETWEEN    THE    OLD   AND    NEW    TESTAMENTS.       By   Canon 

R.  H.  Charles,  D.D. 
A  HISTORY  OF  PHILOSOPHY.    By  Clement  Webb,  M.A. 
POLITICAL     THOUGHT    IN  ENGLAND:     From   Bacon    to    Locke. 

By  G.  P.  GoocH,  M.A. 
POLITICAL    THOUGHT  IN  ENGLAND:     From  Bentham   to  J.   S. 

Mill.    By  Prof.  W.  L.  Davidson. 
POLITIC AL     THOUGHT   IN  ENGLAND:      From   Herbert    Spencer 

to  To-day.    By  Ernest  Barker,  M.A. 
THE  CRIMINAL  AND  THE  COMMUNITY.    By  Viscount  St.  Cyres. 
THE  CIVIL  SERVICE.     By  Graham  Wallas,  M.A. 
THE  SOCIAL  SETTLEMENT.     By  Jane  Addams  and  R.  A.  Woods. 
GREA  T  INVENTIONS.     By  Prof.  J.  L.  Myres,  M.A.,  F.S.  A. 
TOWN  PLANNING.    By  Raymond  Tj'nwin. 

London:    WILLIAMS  AND  NORGATE 

And  of  all  Bookshops  arid  Bookstalls, 


*V4>u/VA^\^^^  .    \    X.j"^ 


V5 


THE  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

Santa  Barbara 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW. 


MAY  3i~1 1965 


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50m-l.'63(D4T43s8)4T6 


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